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ALLAHABAD HIGH COURT
Bharat Bhushan, Satya Narain Agnihotri, JJ.
Israfeel - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 2505 of 2005
Decided On : 11-05-2017
ante-timing - Criminal Procedure - Indian Penal Code, Explosive Substance Act - [302 IPC, 5 Explosive Substance Act] - The court affirmed the judgment and order dated 27.5.2005 passed by Additional Sessions Judge, Court No. 5, Deoria in Sessions Trial No. 43 of 1997 (State v. Israfeel) convicting the appellant under section 302 IPC and acquitting him under section 5 Explosive Substance Act. The court rejected the appellant's claim of ante-timing the FIR and found that the evidence presented by the prosecution was natural, satisfactory, credible, and consistent with the ocular evidence. The court also held that the statement of the appellant under section 313 Cr.P.C. was properly recorded and that he was given the opportunity to explain the incriminating circumstances.
Fact of the Case:
The appellant, Israfeel, was convicted to life imprisonment under section 302 IPC for throwing bombs at the deceased, Subhash Yadav, resulting in his death. The appellant was also acquitted under section 5 Explosive Substance Act. The prosecution's case was based on the testimony of eyewitnesses and medical evidence.
Finding of the Court:
The court found the evidence presented by the prosecution to be natural, satisfactory, credible, and consistent with the ocular evidence. The court rejected the appellant's claim of ante-timing the FIR and held that the statement of the appellant under section 313 Cr.P.C. was properly recorded and that he was given the opportunity to explain the incriminating circumstances.
Issues: The issues revolved around the timing of the FIR, the credibility of the eyewitnesses, the recording of the appellant's statement under section 313 Cr.P.C., and the sufficiency of the motive for the crime.
Ratio Decidendi: The court's decision was influenced by the natural, satisfactory, and credible evidence presented by the prosecution, the consistency of the evidence with the ocular evidence, and the proper recording of the appellant's statement under section 313 Cr.P.C.
Final Decision: The court affirmed the judgment and order convicting the appellant under section 302 IPC and acquitting him under section 5 Explosive Substance Act. The appellant was ordered to serve out the remaining part of his sentence.
Bharat Bhushan J.
1. Israfeel, sole appellant in this case, has assailed the judgment and order dated 27.5.2005 passed by Additional Sessions Judge, Court No. 5, Deoria in Sessions Trial No. 43 of 1997 (State v. Israfeel) arising out of Case crime No. 229 of 1996 under section 302 Indian Penal Code (in short, IPC) Police Station (in short, P.S.) Kasia, District Padrauna (Kushinagar) whereby appellant was convicted to life imprisonment and a fine of Rs. 10,000/- with default stipulation. Appellant was, however, acquitted under section 5 Explosive Substance Act by the impugned judgment.
2. According to prosecution, the family of complainant Gulab Chand Yadav (PW-1) and deceased Subhash Yadav held a customary house warming party in the evening of 18.5.1996 for their village friends and relatives. They had extended invitation prior to the event but again requested the village friends on the day of incident as well. In fact, they were busy in hosting the dinner as well as simultaneously calling people to attend it. It is said that at about 10: 30pm, complainant Gulab Chand Yadav (PW-1) and his younger brother Subhash Yadav (deceased) went to fetch Rama Ashish (PW-2) and Santu Yadav son of Jagdev (PW-3). All of them were coming back to the residence of complainant to partake in the feast.
3. As they reached the residence of one Ram Avtar, appellant Israfeel emerged suddenly and threw three bombs upon Subhash injuring his left hand and back side. Allegation is that two bombs did not detonate while one bomb exploded and injured Subhash Yadav in the aforesaid manner.
4. It is said that accused-appellant Israfeel, who had antagonistic relationship with deceased and his family, ran towards south and tried to reach Mosque, stated to be located at the distance of 130 paces. It is also alleged that as soon as appellant Israfeel ran inside mosque from the stairs, another bomb which he was holding also exploded injuring him. It is stated that his right hand was badly hurt in the incident. This incident was witnessed by complainant Gulab Chand Yadav (PW-1) and two invitees namely, Ram Ashish Yadav (PW-2) and Santu Yadav son of Jagdev (PW-3). Actually claim is that these three persons themselves escaped narrowly. It was said that complainant Gulab Chand Yadav (PW-1) was holding battery torch at the time of incident. Therefore, all the witnesses managed to recognize the assailant.
5. Injured Subhash was taken on tractor to Government Hospital, Kasia where he was referred to Medical College, Gorakhpur. Other family members including father of deceased and their companions took the injured Subhash Yadav to Gorakhpur. However, complainant Gulab Chand wrote a First Information Report (in short, FIR) (Ex. Ka.-1) at Government Hospital, Kasia and lodged it at the Police Station at about 23: 55hours i.e. within 85 minutes of incident. Police Station was located at 9km. away from village Parevatar. A chik report (Ex. Ka-4) was carved out. The incident was recorded in the General Diary (in short, G.D.) extract of which is available as Ex. Ka. 5.
6. Meanwhile, deceased Subhash Yadav succumbed to his injuries around 12: 30am between the night of 18/19.5.1996 while on his way to district Gorakhpur in a private Jeep No. UP 57-104. The dead body was taken back to Police Station Kasia where a report had already been lodged under section 307 IPC by PW-5 Constable Shiv Shanker Dubey. Information of death of Subhash Yadav was furnished to the Police, therefore, the case under section 307 IPC was amended to one under section 307 IPC by the said Constable. The relevant entries were made in the G.D. extract of which is available as Ex. Ka.-6. This amendment was allegedly done at 1: 00pm in the night, according to PW-5 Constable Shiv Shanker Dubey
7. The investigation was taken over by the then Station House Officer (in short, S.H.O.) Prem Singh Visht, who recorded the statement of one Sant Raj Yadav son of Asharfi Yadav, the real brother of complainant Gulab Singh
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