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IN THE HIGH COURT OF ALLAHABAD
ANJANI KUMAR MISHRA, RAJIV GUPTA, JJ.
Shabbir and Another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 1955 of 1984
Decided On : 10-02-2023
Advocate Appeared:
For the Appellants : K.K. Misra, Palok Basu, Panchu Ram Maurya.
The main legal point established in the judgment is the requirement for the prosecution to prove the case beyond reasonable doubt, the importance of credible evidence, and the necessity of recovery of incriminating articles for sustaining a conviction.
Headnote:
IPC - Criminal Law - Section 302, Section 395, Section 396 - The judgment discusses the conviction of the appellants under Section 302 and Section 395 read with Section 396 IPC. It also highlights the lack of evidence, doubts regarding the source of light, and the absence of recovery of looted articles, leading to the acquittal of the appellant no. 2.
Fact of the Case:
The case involves a dacoity incident resulting in the death of the deceased and injuries to the first informant. The prosecution alleged that the appellants were involved in the dacoity and shooting.
Finding of the Court:
The court found that the prosecution failed to prove its case beyond reasonable doubt against the appellant no. 2. It also highlighted doubts regarding the source of light and the absence of recovery of looted articles. As a result, the court acquitted the appellant no. 2.
Issues: The issues revolved around the identification of the perpetrators, doubts regarding the source of light, and the lack of evidence to prove the case beyond reasonable doubt.
Ratio Decidendi: The court's decision was influenced by the lack of evidence, doubts regarding the source of light, and the absence of recovery of looted articles, leading to the acquittal of the appellant no. 2.
Final Decision: The appeal was allowed, and the court recalled the non-bailable warrants issued against the appellant no. 2. The appellant no. 2 was acquitted of the charges against him.
JUDGMENT :
1. Heard learned counsel for the appellants and learned AGA for the State.
2. The appeal is directed against the judgment and order dated 07.08.1984 passed by the 4th Additional Sessions Judge, Mirzapur convicting appellant no. 1, Shabbir S/o Usman under Section 302 and Section 395 read with Section 396 IPC and sentencing him life imprisonment and 7 years RI respectively.
3. The appellant no. 2, Shabbir S/o Shukrullah has been convicted under Section 396 IPC and sentenced 10 years RI.
4. Appellant no. 1 died during the pendency of the appeal and the appeal on his behalf has already been ordered to abate. It survives only on behalf of appellant no. 2, Sabbir son of Shukrullah.
5. A FIR was lodged at PS Dudhhi, District Mirzapur on 12.09.1983 at 7.30 a.m. which gave rise to Case Crime No. 115 of 1983, under Section 396 IPC regarding an incident which is stated to have taken place at 1 a.m. the previous day.
6. The case set out in the FIR aforenoted, lodged by Ram Briksha son of Lalji, was that on the intervening night of 11/12.09.1983, he was sleeping in a Kothari in the southern side of his house with his wife. His father was sleeping in a Kothari on the eastern side near the main entrance of the house and a lantern was burning there. The first informant's mother and other family members were sleeping in the eastern verandah. On hearing noises, he woke up at around 1:00 am on hearing sounds and came into the courtyard with a torch. The door on the rear entrance was broken open from outside and 8 to 10 persons entered. Three of these persons were armed with country made pistol while the rest had lathi, danda, spear and torches. On entering these persons looked for Lalji, father of the first informant and 3 of 4 of them entered his room. The first informant and his mother followed them. His father had woken up and sitting on the cot of which he had been sleeping. One of the intruders namely Sabbir shot the first informant's father who fell on the cot, itself. The first informant ran into the western kothari and close the door. The intruders opened the main door and some persons started guarding it and started looting the valuables. On the hue and cry raised by the first informant and his family members several villagers armed with torches and lathis arrived on the spot. In the meantime the door of the room wherein the first informant had locked himself up was also broken down and a shot was fired at him. He suffered some pellet injuries of the intruders. He was able to identify Shabbir son of Usman, Chirangan Musalman resident of Mahuli and Shabbir son of Sakrulla resident of Chhiwahi. His father had been shot by Shabbir resident of Mahuli. There was enmity between the deceased and Shabbir Musalman resident of village Mahuli regarding a fisheries lease which had been granted by the Sub Divisional Magistrate in favour of the first informant.
7. On 11.09.1983, Shabbir was fishing in this pond and the deceased asked him to desist. Shabbir threatened the accused that would be killed and the same night the incident took place on account of the aforesaid enmity. The dacoits looted gold and silver ornaments and various items, detailed in the FIR.
8. It appears that the first informant was sent for medical examination and is alleged to have been medically examined on 12.09.1983.
9. Inquest was conducted between 7:30 am and 10:30 am on 12.09.1983. Thereafter, the body was sent for post mortem which was duly conducted. The police after investigation submitted a charge-sheet against the accused on 23.10.1983.
10. Upon committal on 18.01.1984, the 5th Additional Sessions Judge, Mirzapur framed charges under Section 302 IPC against appellant no. 1 Shabbir son of Usman. He also framed charge against the accused under Section 395 read with Section 396 IPC.
11. The prosecution has examined as many as 8 witnesses to prove the prosecution case.
12. PW-1, Rambriksh is the son of the deceased and the first informant, PW-2, Moti is the person who is a
