# Nikka v. State of U.P

- **Citation:** (2024) 4 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-01
- **Case number:** Criminal Appeal No. 5137 of 2021
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nikka-v-state-of-u-p-51787
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302, 304 Part II,
452 & 504 - Arms Act, 1959 - Sections
25/27 & 30 - Code of Criminal Procedure,
1973 - Sections 313, 319, 374(2), 437A -
Criminal
Appeal
Against
Conviction
and
Sentence - Murder - Culpable Homicide Not
Amounting to Murder - Rioting - Unlawful
Assembly - Common Object - House Trespass -
Insult - Firearm Injury - Eye-Witness Testimony
- Medical Evidence - Forensic Evidence - Motive
- Delay in Medical Treatment
The appellants, Nikka, Bhola, Jameel @ Lalla,
Gama, and Shama, challenged the judgment
dated 06.10.2021 by the Sessions Judge,
Pilibhit, in Sessions Trial No. 98 of 2017 (arising
out of Case Crime No. 2246 of 2016), convicting
them under Section 302 read with Section 149
IPC for life imprisonment with a Rs. 30,000 fine
each, along with convictions under Sections
25/27 and 30 Arms Act for some appellants. The
prosecution alleged that on 18.11.2016 at 6:00
AM, the appellants, motivated by prior enmity,
trespassed into the house of PW-1 (Faizulla
Khan), dragged his son Yunus to the road,
where Bhola fired a single shot from a licensed
double-barrel gun, causing a fatal thigh injury.
Yunus died due to delayed medical treatment.
Held: (1) The appeals were partly allowed,
modifying Bhola's conviction to Section 304 Part
II IPC and setting aside convictions of Nikka,
Jameel, Gama, and Shama. (2) The prosecution
case rested on PW-1's testimony, supported by
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-2
(deceased's
brother)
and
medical
evidence, but PW-6 was not an eye-witness. (3)
The single gunshot injury on the thigh, non-vital
part, and absence of repeat shots indicated no
intent to kill, supported by PW-4's testimony
that death resulted from excessive bleeding due
to delayed treatment. (4) The lack of overt acts
by other appellants and acquittal of co-accused
Khaleel rendered their implication ornamental.
(5)
The
plea
of
prior
enmity
was
unsubstantiated, as PW-1's claim of a prior
shop-ransacking incident was not mentioned in
the FIR or Section 161 Cr.P.C. St.ments. (6)
Forensic evidence confirmed the recovered gun
fired the cartridge, but the absence of
tattooing/blackening
did
not
negate
the
prosecution case. (7) Bhola's sentence was
modified to the period undergone (over 8 years
with remission), with the fine sustained, while
other appellants were acquitted and ordered
released unless wanted in other cases.

## Text

_Characters 0–39,999 of 40,048. This is a partial read: ask again with offset=39999 for what follows._

4 All. Nikka Vs. State of U.P.
1245
sentenced with the period of imprisonment
already undergone in prison.

16. The Custody Certificate dated
02.08.2023 issued by Central Prison,
Bareilly
reflects
that
the
appellant
Dharampal has been convicted in another
case, i.e., Case Crime Nos. 31 and 34 of
2010, Sessions Trial No. 533, 534/2010
under Section 302 IPC and Section 25
Arms Act, Police Station Kotwali Dehat,
District Bijnor whereby life imprisonment
was awarded on 22.12.2010 by Additional
Session Judge, Court No. 5, Bijnor and the
conviction has been upheld by this High
Court on 05.04.2018.

17. The appeal stands partly
allowed.

18.

The
accused-appellant
Dharampal shall be released forthwith from
jail, if he is not wanted in any other case.

19. Office is directed to transmit a
copy of this judgement to the learned
Sessions Judge, Bijnor for compliance.

20. Office is also directed to send
back the record of the Trial Court
immediately.

21. We record our appreciation for
the able assistance rendered by the Amicus
Curiae, who would be entitled to her fee as
per the rules of the High Court Legal
Services Committee.
----------
(2024) 4 ILRA 1245
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5137 of 2021
Connected with'
Crl. Appeal Nos. 1178 of 2022, 5268 of 2021,
5408 of 2021 & 5608 of 2021

Nikka ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rahul Saxena, Sri Satyendra Kumar Mishra,
Sri Surendra Pal , Sri Ajay Pandey

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302, 304 Part II,
452 & 504 - Arms Act, 1959 - Sections
25/27 & 30 - Code of Criminal Procedure,
1973 - Sections 313, 319, 374(2), 437A -
Criminal
Appeal
Against
Conviction
and
Sentence - Murder - Culpable Homicide Not
Amounting to Murder - Rioting - Unlawful
Assembly - Common Object - House Trespass -
Insult - Firearm Injury - Eye-Witness Testimony
- Medical Evidence - Forensic Evidence - Motive
- Delay in Medical Treatment
The appellants, Nikka, Bhola, Jameel @ Lalla,
Gama, and Shama, challenged the judgment
dated 06.10.2021 by the Sessions Judge,
Pilibhit, in Sessions Trial No. 98 of 2017 (arising
out of Case Crime No. 2246 of 2016), convicting
them under Section 302 read with Section 149
IPC for life imprisonment with a Rs. 30,000 fine
each, along with convictions under Sections
25/27 and 30 Arms Act for some appellants. The
prosecution alleged that on 18.11.2016 at 6:00
AM, the appellants, motivated by prior enmity,
trespassed into the house of PW-1 (Faizulla
Khan), dragged his son Yunus to the road,
where Bhola fired a single shot from a licensed
double-barrel gun, causing a fatal thigh injury.
Yunus died due to delayed medical treatment.
Held: (1) The appeals were partly allowed,
modifying Bhola's conviction to Section 304 Part
II IPC and setting aside convictions of Nikka,
Jameel, Gama, and Shama. (2) The prosecution
case rested on PW-1's testimony, supported by
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-2
(deceased's
brother)
and
medical
evidence, but PW-6 was not an eye-witness. (3)
The single gunshot injury on the thigh, non-vital
part, and absence of repeat shots indicated no
intent to kill, supported by PW-4's testimony
that death resulted from excessive bleeding due
to delayed treatment. (4) The lack of overt acts
by other appellants and acquittal of co-accused
Khaleel rendered their implication ornamental.
(5)
The
plea
of
prior
enmity
was
unsubstantiated, as PW-1's claim of a prior
shop-ransacking incident was not mentioned in
the FIR or Section 161 Cr.P.C. St.ments. (6)
Forensic evidence confirmed the recovered gun
fired the cartridge, but the absence of
tattooing/blackening
did
not
negate
the
prosecution case. (7) Bhola's sentence was
modified to the period undergone (over 8 years
with remission), with the fine sustained, while
other appellants were acquitted and ordered
released unless wanted in other cases.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri Ajay Pandey and Sri
Rahul Saxena, learned counsel for the
appellants as well as learned A.G.A for the
State and perused the record.

2. This bunch of appeals are
directed against the composite judgement
and order passed by the trial court in
Sessions Trial No. 98 of 2017, arising out
of Case Crime No. 2246 of 2016 (State Vs.
Shama and others), whereby the accused
appellants have been convicted under
Section 302 read with 149 Cr.P.C. and
sentenced to undergo life imprisonment
with a fine of Rs. 30,000/- together with
default sentence.

3. The prosecution case proceeds
upon a report (Ext. Ka- 1) as per which the
informant Faizulla Khan S/o Tullan Khan is
resident of Village Kitnapur, District Pilibhit.
On 18.11.2016 at about 6.00 a.m. in the
morning all the accused persons entered the
house of the complainant and on account of
previous enmity dragged his son out of the
house to the road with the intention to kill
him. All the accused persons were having
firearms. Accused Bhola then fired from the
licensed gun of Khaleel causing gun shot
injury to the deceased. On the intervention of
the villagers, all the accused persons
ultimately fled from the spot. The informant's
son Yunus later died. The informant initially
brought the injured to the police station
where he was sent to Primary Health Centre,
Bisalpur and then to District Hospital,
Pilibhit. He was later referred to District
Hospital, Bareilly but he died while on the
way to Bareiily. On the basis of such written
report, first information report came to be
lodged as Case Crime No. 2246 of 2016 on
18.11.2016 at 8.30 in the morning. The place
of incident is 4 kilometer from the police
station. 4. The dead body of the deceased was
taken to the mortuary on the date of incident
itself at 4.30 p.m. where inquest followed.
Information with regard to the death has been
furnished by the Rehmat Khan S/o Faizulla
(P.W.-2). The inquest was completed at about
5.30 p.m. The post mortem was also
conducted on the same day at about 11.45
p.m. by Dr. Manjeet Singh (PW- 4). As per
the post mortem report, following injuries
were found on the deceased during post
mortem examination:-

Wound of entry 8 cm above from
upper border of left patella on front of the
lower portion of thigh with size of wound
10 x 6.5 x inverted & margin lacerated on
cutting haematoma present and vessels and
mussels damaged.
Wound was through and through
and communicating with the external
(exit) wound and underneath bone is
fractured.
4 All. Nikka Vs. State of U.P.
1247
Wound of exit 6 cm. from upper
border of popliteal upper fossa on back of
left thigh and size of wound is 11 x 6.5,
everted margin and casseration. Both the
wounds are communicated with each other.
Tattooing & blackening & singeing of hair
is not present on both the wounds.

5. According to the autopsy
surgeon, the cause of death of the deceased
was shock and hemorrhage due to ante
mortem fire-arm injury.

6. The accused persons were later
arrested on 20.11.2016 and the weapon of
offence, namely double barrel licensed gun,
along with cartridge and two country made
pistols etc. were recovered from the
accused Khaleel S/o Zafar Khan and Bhola
S/o Jamil Khan and others and Case Crime
No. 2249 of 2016 and 2250 of 2016, under
Section 25/27 Arms Act were registered at
5.10. p.m. on the same day i.e. 20.11.2016.

7. The record further reveals when
the injured was taken to the District
Hospital, Pilibhit on 18.11.2016, his X-ray
was got conducted. The X-ray report is on
record (page 17 of the paper 4 book).
Deceased Yunus Khan alias Bhoora had
suffered fracture in his left thigh in the
femur bone region. This document reveals
that at District Hospital, Pilibhit itself the
deceased had died. The investigation
further proceeded and bloodstained earth
and plain earth were collected from the spot
by the Investigating Officer (Ext. Ka-15).
The weapon of assault i.e. 12 bore double
barrel gun and 12 bore used bullet were
also produced (Ext. Ka-16). The recovered
firearm alongwith used bullet was sent for
scientific examination to the Forensic
Science Laboratory and its report is on
record which shall be dealt with later. The
investigation was ultimately concluded and
charge
sheets
were
submitted
on
13.01.2017 (Ext. Ka-18), 20.12.2016 (Ext.
Ka-21), 20.12.2016 (Ext. Ka-22 and
02.01.2017 (Ext. Ka-23). Cognizance was
taken by the concerned court and since the
offence was triable by the court of
Sessions, the matter was referred to the
court of Sessions where four Session Trials
were registered. Charges were framed
against the accused appellants who denied
the accusation and claimed to be tried. The
Session Trial No. 98 of 2017 was in respect
of Case Crime No. 2246 of 2016, under
Sections 147, 148, 149, 302, 452, 504
I.P.C., Police Station Bisalpur, District
Pilibhit. Session Trial No. 99 of 2017 was
in respect of Case Crime No. 2249 of 2016,
under Section 25/27 Arms Act, Police
Station Bisalpur, District Pilibhit. Session
Trial No. 100 arose out of Case Crime No.
2250 of 2016, under Section 25/27 Arms
Act, Police Station Bisalpur, District
Pilibhit. Session Trial No. 101 of 2017
arose out of Case Crime No. 2250 of 2016,
under Section 30 Arms Act, Police Station
Bisalpur, District Pilibhit. All the session
trials have been clubbed and disposed of
vide judgment and order dated 06.10.2021
by the Session Judge, Pilibhit and accused
appellants
have
been
convicted
and
sentenced as per above. Against the said
judgment and order, five appeals have been
preferred before this Court.

8. The prosecution has produced
testimonies
of
following
prosecution
witnesses:-

(i) PW-1 Faizulla Khan, (ii) PW-2
Rehmat Khan, (iii) PW-3 Hitesh Kumar,
(iv) PW-4 Dr. Manjeet Singh, (v) PW-5
Puskar Singh, (vi) PW-6 Munees, (vii) PW7 Ramveer Singh, (viii) PW-8 Shakeel
Ahmad, (ix) PW-9 Suresh Kumar Singh
and (x) PW-10 Pushkar Singh.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
9. In addition to oral testimony of
the prosecution witnesses, the prosecution
has also produced following documentary
evidences:-

(i) F.I.R. Ext. Ka-2, Ext. Ka-4 and
Ext. Ka-6, (ii) Written Report Ext. Ka-1,
(iii) Recovery memo of murder weapon
licensed gun double barrel 12 bore with
used bullet Ext. Ka-16, (iv) Recovery
memo ofbloodstained and plain soil Ext.
Ka-15, (v) X-ray report, (vi) Post mortem
report Ext. Ka-7, (vii) Three reports of
Forensic
Science
Laboratory,
(viii)
Panchayatnama Ext. Ka-8, (ix) Four
Charge sheets Ext. Ka-18, Ext. Ka-21, Ext.
Ka-22 and Ext. Ka-23.

10. All the accused appellants were
then confronted with the evidence adduced
against them during trial in order to record
their statements under Section 313 Cr.P.C.
All the accused appellants denied the
allegations made against them and stated
that they have been falsely implicated. It
has also been asserted by the accused
appellants that they have been implicated
on account of enmity.

11. Trial court has examined oral
and documentary evidence produced during
trial in order to return the finding of guilt
against the accused appellants on the basis
of which they have been convicted and
sentenced as per above.

12. Sri Ajay Pandey, learned
counsel appearing in all the appeals
submits that the prosecution has failed to
establish the guilt of the accused appellants
beyond reasonable doubt; the testimony of
PW- 1, who is the sole eye witness, is not
credible and reliable and the conviction and
sentence of the accused appellants, relying
upon his testimony, is not sustainable; it is
submitted that F.S.L. report does not
support the prosecution case inasmuch as
the gun shot wound on the deceased neither
tallies with the bullet recovered nor any
pallet has been found and no blackening or
tattooing is noticed either which nullifies
the prosecution case of firing from a close
distance by a bullet; learned counsel for the
accused appellants further submitted that
six persons were initially implicated in the
aforesaid offence but implication of one of
them, namely Khaleel, has not been
accepted, which renders the testimony of
PW-1 unreliable; learned counsel for the
accused appellants also argued that the
prosecution case against all six accused
persons intending to murder the deceased is
not credible as there is a solitary gun shot
injury on the thigh of the deceased, caused
by accused Bhola, whereas other five
accused persons have not caused any injury
to
the
deceased;
with
reference
to
testimony of autopsy surgeon i.e. PW-4 Dr.
Manjeet Singh, it is urged that cause of
death was excessive bleeding on account of
the fact that proper medical aid was not
rendered to the injured, at that time, as he
was initially taken to the police station, and
later referred to Primary Health Center,
Bisalpur and then to District Hospital,
Pilibhit. In this process a lot of time was
wasted. In case the deceased had been
given proper medical treatment and his
bleeding was stopped, he might have
survived. In the alternative, learned counsel
for the accused appellants submits that
even if the prosecution case is taken on its
face value, it would not indicate an offence
under Section 302 I.P.C. and as such,
maximum punishment, which could be
awarded to the accused Bhola, would fall
under Section 304-II I.P.C. Learned counsel
asserted that accused appellant Bhola has
already undergone incarceration for more
than 8 years, as such, he is entitled to be
4 All. Nikka Vs. State of U.P.
1249
released
on
the
punishment
already
undergone; so far as other accused
appellants are concerned, there is no overt
act attributed to them and since their
implication is otherwise ornamental, all
other accused appellants are liable to be
acquitted and the appeals deserve to be
allowed.

13. Learned A.G.A., on the other
hand, urged that testimony of PW-1 is
wholly
reliable,
which
is
otherwise
supported by the documentary evidence on
record. Learned A.G.A. further argued that
since the weapon used in the incident has
been recovered from the accused appellants
and there was specific motive available to
the accused appellants to commit the
murder, as such, the judgment and order of
the Court of Session merits no interference.

14. Before adverting to the
respective submissions advanced on behalf
of the learned counsels for the parties, it
would be relevant to mention some features
of the case. The deceased, who was aged
about 26 years, was of average built and he
admittedly died on 18.11.2016. The inquest
report as well as post mortem report clearly
shows existence of single gun shot injury
caused to the deceased, which resulted into
two wounds, one of entry wound 8 cm
above upper border of left patella on front
of the lower portion of thigh with size of
wound being 10 cm. x 6.5 cm. This wound
was inverted and margins were lacerated.
On cutting, haematoma was found present
and vessels and muscles were found
damaged. The wound was through and
through and communicated with the
external (exit) wound and underneath bone
was fractured. The other wound is exit
wound from upper border of popliteal
upper fossa on back of left thigh and size of
wound is 11 cm. X 6.5 cm., everted margin
and casseration. Tattooing, blackening and
singeing of hair was found absent on both
the wounds.

15. The evidence on record
therefore clearly shows that the deceased
died on account of single gun shot injury
which has caused both the injuries i.e. entry
wound and exit wound. Cause of death was
shock and haemorrhage due to ante mortem
fire-arm injury. The F.S.L. report shows
that clothes worn by the deceased had
bloodstained on major parts. The blood
found was human blood but was integrated.
So far as firearm recovery from the accused
persons is concerned, it transpires that 12
bore DBBL Gun No. 87000 was examined.
The F.S.L. report shows that 12 bore
cartridge recovered from the accused
persons was fired from the DBBL Gun No.
87000.

16.

The
prosecution
case
essentially relies upon the testimony of
PW-1 Faizulla Khan who happens to be
first informant and is also father of the
deceased Yunus. In the examination-inchief, PW-1 has stated that the incident
occurred at about 6.00 a.m. in the morning.
He had enmity with the accused persons.
The accused entered his house and hurled
filthy abuses on his son and dragged out
him from the house to the public road. The
accused Bhola fired from the licensed
double barrel gun of accused Khaleel with
an intention to kill Yunus. All other accused
persons were armed with unauthorized
country made pistols. On receiving the gun
shot
injury,
Yunus
fell
down.
On
exhortation of PW-1, his other son Rahmat
Khan (PW-2) and neighbour Shahjad and
Munees (not produced) arrived and the
accused persons left the injured thinking
him to have died. All the accused persons
had entered his house armed with firearms
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
having common intention. The gun shot
injury on Yunus has caused excessive
bleeding. PW-1 took his son Yunus to the
police
station
and
after
getting
an
application typed, lodged the report at
Police Station Bisalpur. After the report
was registered, the police took the injured
to Primary Health Center, Bisalpur. As the
condition of the injured was deteriorating,
the doctors advised him to be taken to the
District Hospital, Pilibhit. At District
Hospital, Pilibhit, the doctors advised the
injured to be taken to Bareilly and as the
injured was on the way to Bareilly, he died.
PW-1 has also stated that three months
prior to the incident, the accused had
ransacked the shop of maternal uncle of the
deceased Yunus, namely Safiq Khan, and
that was the reason of enmity between
them. Safiq Khan was also not living with
him. The accused persons are stated to be
of criminal nature and various cases were
pending against them.

17. In the cross examination, PW-1
has admitted that a case under Sections
323/324 I.P.C. is proceeding against him
wherein Islam is accused. Mulla is
informant of that case. Father of Mulla is
Jaleel. Accused Shama, Gama and Bhola
are real brothers. Accused Jameel alias
Lalla and Khaleel are also real brothers.
Nikka is family member.

18. Soon after the incident, PW-1
claims to have gone to the Police Station,
Bisalpur. He reached at Police Station,
Bisalpur within 15-20 minutes. PW-2
came later and was standing behind him.
Soon after the incident, Daroga and local
police arrived on the spot. Following
passage from the cross examination of
PW-1
is
relevant
and
reproduced
hereinafter:-
"िम िोग उजािा मे रिाना िो गये।
15-20 धममनर् मे र्थाने पिुच गये। पििे मै
र्थाना पिुचा। मेरा बेर्ा रिमत खां मेरे पीिे खडा
िुआ िै। यि उस मुकदमे का गिाि िै। मै आिा
घण्र्े के अन्दर र्थाने पिुच गया। सुबि 6 बजे
गोिी चिी, िडाई िुयी, दरोगा जी तुरन्त पिुच
गये र्थे। दरोगा जी ने मुझसे पूिा fd क्या
मामिा िै। मैने किा fd रंम्जि र्थी। दरोगा जी
मेरे गांि पिुचे और मुझसे किा fd तुम र्थाने मे
ररपोर्ज धिखाओ मैने ररपोर्ज धिखाने र्थाने गया और
हफर मै र्थाने से तिसीि गया, और ििां तिरीर
र्ाइप करायी और हफर िडके को गांि से
अस्पताि इिाज िेतु भेज दया। िडके के सार्थ
गांि के िी दरोगा जी ने एक fसपािी अस्पताि
भेजा और किा fd उसको अस्पताि बीसिपुर मे
भती कराओ िडका पुधिस की मदद से गांि से
अस्पताि पिुच गया और उसका इिाज िुरु िो
गया। हफर मै रपर् धिखाकर र्थाने से अस्पताि
पिुचा।"

19. PW-1 has categorically stated that
solitary gun shot injury on the deceased
was caused by accused Bhola and that none
of other five accused persons either fired or
did anything. The passage in that regard is
reproduced hereinafter:-

"भोिा के पास तमंचा र्था। भोिा ने
तमंचे से कोई फायर निी fdया। उसने बन्दूक से
फायर मारा। जब पििा फायर िुआ तब मै
धिियाकत के दरिाजे से 10 कदम की दूरी पर
र्था, धिियाकत के दरिाजे के पम्श्चम की तरफ
र्था। मै ि यूनूस संग संग आगे पीिे जा रिे र्थे।
4 All. Nikka Vs. State of U.P.
1251
तभी फायर िुआ, फायर करने िािा मुझसे 10
कदम की दूरी पर र्था, यूनूस मेरे सार्थ र्था, उसके
फायर आया। यूनुस fगर गया। धियाकत के
मकान के सामने धियाकत के दरिाजे से 2
कदम की दूरी पर। घर्ना के समय मेरे पास 1
जानिर र्थे, मेरे पास दूि देने िािे जानिर भी
र्थे, मै जानिर पािने का काम भी करता िूाँ।
उसके धिए मैने अिग गोडा बना रखा िै। उसी
मे जानिर रिते िै। कुि धमिाकर मुम्लजमान
र्थे। 6 मे से 5 मुम्लजमान ने कोई फायर निी निी
fdया और कुि निी fdया। 5 मुम्लजम 5 कदम
की दूरी पर खडे रिे मेरs पूरब मे खडे रिे। "

20. In the cross examination, PW-1
has stated that they never had any fight
with the accused persons nor had ever been
disclosed to them before three months of
the incident. The passage in that regard
reads as under:-

"मेरी मुम्लजमान से कभी कोई िडाई
निी िुई। अब िडाई बन गयी, जब से भूरा मरा
पििे कोई चक्कर निी र्था। न मुझसे न िडाई
िो। पििे मुम्लजमान ने किा र्था fd ;fn 3 माि
पििे --- सार्थ fnया र्था। यि बात मैने
एफ.आई.आर मे निी धिखायी र्थी, दरोगा जी ने
मेरा 2 बार 161 सीआरपीसी का ब्यान धिया
उसमे भी निी बतायी र्थी, मुझे निी बताई
इसकी िजि निी बता सकता।"

21. The cross examination of PW1 also indicates that he had not named any
of the witness in the report and witnesses
were later introduced on the further
questioning of the Investigating Officer.
The passage in that regard is reproduced
hereinafter:-

"यि किना गित िै fक मैने fसखाने
से ब्यान fnया िो, मैने रररपोर्7 मे धमकसी
गिाि का नाम निी धिखाया िै। मैने जब
दरोगा जी को अपना ब्यान fnया र्था, उसमे
fdसी गिाि का नाम निी बताया र्था, घर्ना के
7-8 धमदन बाद दरोगा जी आयs, उन्िोने मुझसे
पूिा र्था fक fकसको -2 गिाि रखोगे तो मैने
तीन िोगो के नाम बताये र्थs, म्जसमे अपनs
दामाद मुनीम खां को , अपने िडके रिमत खां
को और अपने िडके ििजाद को गिाि बनाने
की बात किी र्थी। मैने तीनो आदधममयो से
पूिा र्था fक क्या गिािी दोगे। इन्िोने किा fक
िम पक्की तौर पर गिािी देंगे , नाम धिखा
दो। दरोगा जी ने किा fक ठीक िै मै गिाि बना
देता िूाँ। मेरे म्जन कपडो पर यधमनस खां का
खून िगा र्था दरोगा जी ने कब्जे मे िे धिये र्थे।
खिीि खां पर तमंचा निी र्था बन्दूक र्थी। मैने
एफ.आई.आर में यि बात धििखाई र्थी fक
सभी
िोगो
पर
तमंचे
र्थे।
यि
मैने
एफ.आई.आर. मे मैने धिखा fnया यि निी
जानता। मेरे इस मुकदमे मे रफ़ीक़, ज़ाहिद,
िफ़ीक़, धियाकत fकसी को भी गिाि निी
बनाया , जबfd इन िोगो के घर घर्ना स्र्थि
के पास िै धियाकत के घर मे धियाकत के
बच्चे रिते िै जबfd िफ़ीक़ खां घर पर र्थे ,
िेधमकन मैने इनमे से धमकसी को गिाि निी
बनाया , उन िोगो ने किा fक िम गिािी निी
देंगे। इन िोगो ने किा fक िम झठूी गिािी
निी देंगे , सच्ची गिािी देंगे। "
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
22. PW-2 Rahmat Khan is brother
of the deceased and he has also supported
the
prosecution
case.
He
has
also
implicated the accused Bhola of causing
gun shot injury. In the cross examination,
he has admitted that PW-1 had taken the
deceased to the police station and he had
also joined him. This witness has been
confronted with his previous statement in
which he has not disclosed that he had gone
with PW-1 to the police station.

23. PW-3 is Constable Hitesh
Kumar. He has proved the G.D. entry
relating to three reports lodged in the
matter. 24. PW-4 is Dr. Manjeet Singh who
has conducted the postmortem on the body
of the deceased. He has clearly stated that
there is only one firearm injury. Following
passage from cross examination of PW-4 is
relevant and is reproduced hereinafter:-

" युनुस की मृत्यु उसके जॉघ में जो
घाि र्था उससे अत्यधिक खून बिने के कारण
िुई र्थी। अगर रि श्राि बन्द िो जाता तो उसकी
मृत्यु निीं भी िो सकती र्थी। मैं यि निीं बता
सकता िूाँ fd बच सकता र्था। या निीं। रि श्राि
रोकने के धिए बााँि fदया जाता ि और उसको
प्रार्थधममक उपचार fदया जाता प्रार्थधममक
उपचार में आई०िी० fफिूर् रि चढाया जाता िै।
मृतक की मृत्यु का कारण उसकी मृत्यु
पूिज चोर् से अत्यधिक रिश्राि तर्था सदमा र्था।
यि चोर् बुिेर् से आयी र्थी। बुिेर् पोस्र्मार्जम
में मृतक के िरीर में निीं धमिी र्थी।"

25. PW-5 is Senior Sub Inspector
Puskar Singh who has proved the inquest
report. PW-6 is Munees who has admitted
that he arrived at the place of occurrence
after five minutes of the incident on hearing
the commotion. He has admitted that he
works as daily labour for about 5-6 months
at Delhi.

26. Additional S.H.O. PW-7 is
Ramveer Singh who has prepared the site
plan and proved the recovery of clothes,
plain and bloodstained earth etc. PW-8 is
Sub Inspector Shakeel Ahmad who is
Investigating Officer and has arrested the
accused persons, from whose possession
firearms were recovered. PW-9 is Incharge
Inspector Suresh Kumar Singh and is
formal
witness.
He
has
stated
that
implication of Khaleel was found false.
PW-10 is Sub Inspector Puskar Singh who
has conducted the investigation in Case
Crime No. 2249 of 2016 and 2250 of 2016
under Section 25/27 Arms Act, Police
Station Bisalpur, District Pilibhit.

27. The evidence, noticed above, has
been confronted to all the accused who have
stated that they have been falsely implicated
on account of enmity and they have not
committed the offence. No defence, however,
has been produced in the matter.

28. The trial court in the facts of
the case has returned the finding that the
prosecution has been able to prove its case
against the accused appellants beyond
reasonable doubt. The accused Khaleel was
summoned under Section 319 Cr.P.C. but
his implication has not been established
and
consequently
Khaleel
has
been
acquitted. All the five accused appellants
Shama, Gama, Bhola, Nikka, and Jameel
Khan alias Lalla have been convicted and
sentenced under Sections 147, 148, 302
read with Section 149 I.P.C. The accused
Gama, Shama, and Bhola have also been
convicted under Section 25/27 Arms Act.
The accused Jameel Khan has also been
convicted under Section 30 Arms Act.
4 All. Nikka Vs. State of U.P.
1253
29. It is in the context of above
material placed on record that this Court is
required to consider as to whether the
prosecution has been able to establish the
guilt of the accused appellants beyond
reasonable doubt in the matter or not ?

30. Prosecution case essentially
relies upon the testimony of PW- 1 who is
the first informant and is father of
deceased. As per the prosecution, there was
an old enmity on account of which the
accused persons entered his house; hurled
filthy abuses on the deceased; dragged him
out of the house to the road whereafter
accused Bhola shot at the deceased with the
licensed gun of Khaleel Khan. Although,
Khaleel Khan was also initially implicated
in the matter, but ultimately he has been
acquitted after being summoned under
Section 319 Cr.P.C. It was noticed that
Khaleel Khan was above 80 years of age
and there is no challenge to the acquittal of
Khaleel
Khan.The
incident
allegedly
occurred on account of a previous enmity
between the parties. The evidence on the
aspect of enmity, which also is the genesis
of the offence, needs to be carefully
examined.

31. In the first information report,
PW-1 has stated that there was an old
enmity, due to which the accused persons
entered his house. What was the enmity has
not been explained in the FIR. The enmity
has been disclosed by PW-1 in his
testimony. In his examination-inchief PW-1
has stated that due to old enmity, the
accused persons entered his house. As per
PW-1 about three months prior to the
incident,
the
accused
persons
had
ransacked the shop belonging to maternal
uncle of deceased, namely, Shafiq Khan
ever since then the accused persons
maintained enmity with the informant and
the deceased. It is further asserted by PW-1
that he had supported his relative Shafiq
who has not been residing in the village
since then. It is also alleged that the
accused persons are dangerous persons
against whom various criminal cases are
pending.

32. However, in the crossexamination PW-1 has stated that he had no
fight with the accused persons and it was
only after the incident that differences have
arisen between them. He has categorically
admitted that the incident of ransacking of
the shop of Shafiq Khan was not mentioned
in the FIR nor was it ever disclosed to the
Investigating Officer during recording of
statement under Section 161 Cr.P.C. It is
otherwise apparent on record that no FIR or
even a complaint relating to incident of
ransacking of shop of Shafiq Khan was
ever made or disclosed to the police. No
other cause of enmity has otherwise been
disclosed. The other two witnesses of fact,
namely, PW-2 and PW-6 have also not
substantiated the plea of prior enmity. In
such circumstances, analysis of evidence
on record does not substantiate the plea of
prior enmity between the parties. Such a
plea otherwise appears to have been set up
for the first time during trial and no reasons
are disclosed as to why such important
information was withheld by the witness
earlier
during
investigation.
The
prosecution has also not been able to
demonstrate as to what exactly was the
genesis of the dispute between the parties.
No evidence has been collected in that
regard during trial. In the absence of there
being any credible evidence on the point of
enmity or the genesis of offence, we are not
inclined to endorse the submission of
learned A.G.A. that there existed prior
enmity between the parties on account of
which the incident occurred.
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
33.

The
prosecution
case
essentially rests upon the testimony of PW1, who is the first informant and the father
of deceased. PW-1 has specifically asserted
that all six persons had entered into his
house and had dragged the deceased
outside the house and took him to the road
where he was shot at by the accused Bhola.
According to PW-1 all accused had
firearms with them. As per PW-1 it was
Bhola who shot at the deceased.

34. We have perused the inquest
and the postmortem report, which shows
existence of a solitary gunshot injury on the
thigh region of the deceased. The wound of
entry
and
exit
have
already
been
reproduced above which would clearly go
to show that only one fire was shot at the
deceased. The place of injury apparently is
not on the vital part of the body. We also
find that no repeat gunshot was fired. In the
event, intent of the accused was to kill the
deceased either the gunshot injury would
have been caused on some vital part of the
body or repeat fire could have been
resorted to. We also find that five other
accused
allegedly
were
armed
with
firearms and in the event all of them
intended to eliminate the deceased, there
was no reason why none of them did any
overt act nor any fire was shot by any of
them. One of the accused specifically
implicated by PW-1 is Mohd. Khaleel, who
was above 80 years of age and has been
acquitted after he was summoned under
Section 319 Cr.P.C. The testimony of PW-1
is also questioned on the ground that
implication of Khaleel once is found false,
his testimony cannot be treated to be
entirely reliable.

35. So far as testimony of PW-2 is
concerned, though this witness claims to be
present at the place of incident but his
reference is not made in the first
information report nor he is a witness to the
inquest. The presence of PW-2 is also
questioned by the appellants on the strength
of statement made by PW-1, as per which,
the Investigating Officer inquired from him
as to who would be nominated as witness.
According to PW-1, he has disclosed the
Investigating Officer that PW-2 would be a
witness and after being satisfied that this
witness would also testify in favour of
prosecution that PW-2 was subsequently
introduced. It is also pointed out that
statement of PW- 2 has been recorded by
the Investigating Officer on 22.11.2016 i.e.
two days after the incident. His statement is
recorded on the same day when statement
of Shahzade was also recorded under
Section 161 Cr.P.C, but he was not
produced.

36. So far as PW-6 is concerned,
he has admitted that he came at the place of
occurrence after hearing the commotion.
PW-6 by his very statement therefore has
admitted that he was not an eyewitness and
arrived subsequently at the place of
occurrence. PW-6 has only stated that he
saw the accused persons leaving the spot.

37. It is in the context of testimony
of above three witnesses of fact that we are
required to determine as to whether there
was any intention on part of accused
persons to kill the deceased or not.

38. So far as implication of
persons other than accused Bhola is
concerned, no overt act has been attributed
to them. Out of those who were allegedly
present with firearms, none of them are
even claimed to have fired at the deceased.
Implication of one of the five other accused
persons namely Mohd. Khaleel has been
found wrong. In the event, the intent on
4 All. Nikka Vs. State of U.P.
1255
part of other accused persons was to
eliminate the deceased, there was no reason
why none of them did any overt act on the
spot. In the facts of the case, we are
persuaded to accept the contention of the
appellants that the presence of other five
accused was ornamental and merely to add
colour to the prosecution case. Though,
recovery of firearm is shown from some of
those other five accused persons but the
recovered firearm from them have not been
connected in any manner with the firing on
the accused, inasmuch as the case of the
prosecution is that the firing by Bhola on
the deceased was from the licensed double
barrel gun of Mohd. Khaleel.

39. One of the other important
aspects that needs examination in the facts
of the present case, is the cause of death of
the deceased. The post-mortem report
indicates that the cause of death of the
deceased was shock and haemorrhage due
to ante-mortem firearm injuries. The
Autopsy Surgeon however has clearly
stated that the cause of death of deceased
was excessive bleeding. It is also apparent
from the evidence on record that though the
incident occurred at about 6.00 in the
morning and the deceased was profusely
bleeding but he was not rushed to any
hospital for 17 treatment. PW-1 admits that
he took the injured first to the police station
from where he was sent to the Primary
Health Centre, Bisalpur and then to the
District Hospital, Pilibhit. There was a gap
of several hours between the incident and
the time of death of deceased. As per the
evidence on record, it was the failure to
provide immediate medical assistance to
stop bleeding which ultimately led to the
cause of death. It is otherwise admitted by
the doctor that in ordinary course of things
gunfire on the thigh area would not lead to
the death of the person and it was only on
account of excessive bleeding that the
death occurred.

40. Considering the fact that there
was only one fire shot at deceased on his
thigh region and there was no repeat shot
fired on the deceased clearly demonstrates
that the accused appellant Bhola had no
intention to cause the death of the
deceased. It is also submitted that this was
not a case where the nature of injury caused
to the deceased was such that in ordinary
course such injury was likely to cause death
of the deceased.

41. From the evidence noticed
above, we find substance in the contention
of the accused appellants that the offence
attributed to the accused appellant Bhola at
the best would fall within the ambit of
Section 304, Part-II of the Indian Penal
Code.
Accused
Bhola
has
already
undergone incarceration of more than seven
years six months without remission and
with remission the period of incarceration
would be above eight years. In our view,
the sentence already undergone by the
accused appellant Bhola, would sufficiently
meet the ends of justice. In our conclusion,
the offence committed by him at the best
would fall within the ambit of Section 304
IPC Part II. Fine of Rs. 53,000/- imposed
upon the appellant Bhola is however,
sustained. Failure to deposit the amount of
fine would result further incarceration of a
period of six months.

42. The appeal is consequently
allowed in part in respect of accused
appellant Bhola.

43. The appeal instituted by the
other accused appellants Nikka, Jameel @
Lalla, Gama and Shama are allowed for the
reasons
recorded
above
and
their
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and sentence in Session Trial
No. 98 of 2017, arising out of Case Crime
No. 2246 of 2016 (State Vs. Shama and
others) under Section 302 read with 149
Cr.P.C., is set aside. Since the appellants
are in jail, they shall be released forthwith
and shall be set free, unless are wanted in
any other case, subject to compliance of
Section 437A Cr.P.C.

44. Copy of this judgment shall be
communicated
to
the
Chief
Judicial
Magistrate concerned as also the concerned
Superintendent
of
Jail
for
necessary
compliance. Date: 01.04.2024
----------
(2024) 4 ILRA 1256
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2024
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5897 of 2019

Mohd. Rehan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Shams Tabrez Ali

Counsel for the Respondents:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 377 & 506 - Protection of
Children from Sexual Offences Act, 2012 -
Section 3/4 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(v) -
Code of Criminal Procedure, 1973 -
Sections 313, 374(2) & 437A - Criminal
Appeal Against Conviction and Sentence -
House Trespass - Unnatural Offence - Criminal
Intimidation - Sexual Assault on Minor - SC/ST
Atrocities - Eye-Witness Testimony - Medical
Evidence - Forensic Evidence - Motive -
Reformative
Punishment
-
Doctrine
of
Proportionality
The appellant, Mohd. Rehan, challenged the
judgment dated 26.07.2019 by the First
Additional Session Judge/Special Judge (POCSO
Act), Kaushambi, in Sessions Trial No. 125 of
2016, convicting him under Section 452 IPC (5
years imprisonment, Rs. 5,000 fine), Section
377 IPC (10 years imprisonment, Rs. 10,000
fine), Section 506 IPC (2 years imprisonment,
Rs. 2,000 fine), Section 3/4 POCSO Act (12
years imprisonment, Rs. 12,000 fine), and
Section 3(2)(v) SC/ST Act (life imprisonment,
Rs. 15,000 fine), with 2 months additional
imprisonment for default of fine, all sentences to
run concurrently. The prosecution alleged that
on 20.08.2016, the appellant lured the 11-yearold male victim into a house under the pretext
of offering toffee, committed an unnatural
offence, and threatened the informant (PW-1,
victim's mother) with a knife. The FIR was
lodged on 21.08.2016, supported by PW-1, PW3 (victim), and medical evidence showing anal
injuries. Held: (1) The appeal was partly
allowed, setting aside the conviction under
Section 3(2)(v) SC/ST Act and modifying the
sentence under Section 377 IPC to the period
undergone. (2) No evidence established that the
offence was committed due to the victim's
Scheduled Caste identity or that the appellant
knew of it, rendering the SC/ST Act conviction
unsustainable. (3) PW-1 and PW-3's consistent
testimonies, corroborated by medical evidence
of anal redness and a tear, confirmed the
unnatural offence under Section 377 IPC and
POCSO Act. (4) Minor discrepancies in the place
of occurrence (informant's house vs. accused's
house) were overlooked due to the victim's
young age (10-11 years). (5) The inconclusive
FSL report on DNA evidence did not negate the
prosecution case, as oral and medical evidence
sufficed. (6) Considering the appellant's lack of
prior
criminal
history,
over
8
years
of
incarceration
with
remission,
and
the
reformative theory of punishment, the sentence
under Section 377 IPC was modified to the
period undergone, with fines sustained.

List of Cases cited:

1.