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Court No. 45
Criminal Appeal No. 3 of 1982
Shamim Ahamad @ Munnoo & others ................Appellants
Versus
State of U.P. .............Respondent
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Hon’ble S.C. Agarwal, J
This criminal appeal has been filed against judgment and order
dated 23rd December, 1981 passed by the 7th Addl. Sessions Judge,
Azamgarh in S.T. No. 236 of 1989 whereby the appellants Shamim
Ahmad was convicted under Section 307 IPC and sentenced to undergo
R.I. for four years. Appellants Shamshul Huda, Shamshul Haq and
Saghir Ahmad were convicted under Section 307 read with Section 34
IPC and were sentenced to undergo R.I. for 3 ½ years.
Appellant no. 4 Saghir Ahmad had died as per the office report
dated 11th April, 2007 and the report of the C.J.M. Agamgarh dated 23rd
March, 2007. The appeal of appellant Saghir Ahmad stands abated on
account of his death.
The incident took place on 20.4.1979 at 6 A.M. The FIR was
lodged by Sri Razi Ahmad (P.W-1) on the same day on 8.30 A.M. at P.S.
Ghosi, District-Agamgarh.
The prosecution case, as contained in the FIR is that there was
previous enmity between the parties and a criminal case was pending
against the appellants. On 20.4.1979 at 6 A.M., the accused Shamshul
Haq, Shamim Ahmad @ Munnoo, Shamshul Huda and Saghir Ahmad
came on the khalian of the complainant. Shamshul Haq was armed with
a gun. He gave the gun to appellant Shamim Ahmad @ Munnoo. On the
exhortation of other three co-accused, Shamim Ahmad @ Munnoo fired
at the complainant Razi Ahmad causing him injuries.
On the basis of FIR Ex. Ka-4, the case was registered at Crime
No. 83 of 1979. The injured was sent for medical examination. After
investigation, charge-sheet was submitted.
The charge under Section 307 IPC against Shamim Ahmad @
Munnoo and charge under section 307/34 IPC was framed against rests
of the appellants. The appellants denied the charge and claimed to be
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tried.
The prosecution examined as many as seven witnesses in the
case. Razi Ahmad (P.W.-1) is the first informant and the injured. Mohd.
Isa (P.W.-2), Shamim Ahmad (P.W.-3) and Mohd. Idris (P.W.-4) are the
witnesses of fact. Dr. V.P. Singh (P.W.-5) had medically examined the
injured on 20.4.1979 at 9.30 A.M. at Government Hospital, Ghosi,
Azamgarh and prepared injury report Ex. Ka-2. Dr. S.D.P. Gupta (P.W.-
7) is the Radiologist and has prepared X-ray report Ex. Ka-8. Head
Constable Krishna Singh (P.W.-6) is the formal witness, who has
prepared Chick Report, copy of G.D. and proved the charge-sheet. The
Investigating Officer was not examined.
In their statements under Section 313 Cr.P.C., the accused
persons denied the prosecution allegations and claimed that they have
been false implicated on account of enmity. However, the defence had
not adduced any oral or documentary evidence.
Learned Sessions Judge relied upon the evidence adduced by the
prosecution, convicted and sentenced the appellants as stated above.
I have heard Sri D.N. Pandey, learned counsel for the appellant
nos. 1, 2 and 3, learned AGA for the State and Sri Dharmendra
Srivastava, learned counsel for the complainant.
Learned counsel for the appellants has not assailed the findings of
fact recorded by the Sessions Judge. His submission is that the injuries
sustained by the victim were not on any vital part of the body and were
not dangerous to life. There was no intention on the part of the
appellants to commit murder of the complainant and thus offence falls
within the scope of Section 324 IPC which is compoundable with the
permission of the Court. It is further submitted that parties have come to
terms and compromise was filed in Court, which was sent to C.J.M.
Azamgarh for verification and has been duly verified. It is further
submitted that to maintain harmonious relation between the parties in
future, the compromise be accepted and appellants be acquitted on the
basis of compromise.
Learned AGA and learned counsel for the complainant have no
objection to this course of action.
I have gone through the testimony of P.W.-1 Razi Ahmad and the
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eye witnesses Mohd. Isa (P.W.-2), Shamim Ahmad (.P.W.-3) and
Mohd. Idris (P.W.-4) and it is established from their testimony that on
the exhortation of other three accused, accused Shamim Ahmad @
Munnoo fired at the complainant causing injuries. Dr. V.P. Singh (P.W.-
5) , who has examined the injured soon after the incident, found the
following injuries on his person :-
(1) One small circular Lacerated wound 1/10″ x 1/10″ x 1/110″
located on left anterior aspect of the middle 1/3rd margin of the left thigh.
7 ½” above the knee joint (Advised X-ray). No scorching, tattooing and
blackening present.
(2) One small circular Lacerated wound 1/10″ x 1/10″ x 1/10″
located on the inner side of the left shoulder joint (Advised X-ray). No
scorching, tattooing and blackening present.
The injuries were caused by fire-arm. Duration was fresh. Injury
report is Ex. Ka-3. After X-ray, injuries were found to be simple.
A perusal of the injury report reveals that Razi Ahmad sustained
two pellet injuries, one on left thigh and the other on left shoulder. The
fire was made from a distance. In these circumstances, intention to kill
on the part of the appellants cannot be inferred. I find sufficient force in
the submission of learned counsel for the appellant that the case is
squirely covered under Section 324 IPC and not under Section 307 IPC.
The compromise petition was filed in this Court on 2nd March,
2007. It was mentioned in the compromise petition that injuries sustained
by Razi Ahmad were simple and were not dangerous to life. The parties
belong to the same village and the same family. The relation between
the complainant side and defence side have improved and therefore the
parties be permitted to compound the case.
The compromise was sent to C.J.M. Azamgarh for verification.
Verification Report has already been received.
Before this Court, learned counsel for both the parties have come
to terms and the compromise has been verified. I have already held that
offence under Section 307 IPC is not made out but the case is covered
under Section 324 IPC, which is compoundable. The parties were
inimical earlier but now the relations between the parties have improved
and they wish to live in peace and harmony in future. With a view that
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the relations between the parties remain cordial in future, it is desirable
that compromise be accepted and appellants be acquitted on the basis
of compromise. The appeal is, thus liable to be allowed.
The Criminal Appeal is allowed. Conviction and sentence awarded
by the Sessions Judge to the appellants under Section 307, 307/34 IPC
is set aside. Parties are permitted to compound the case under Section
324 IPC. The compromise filed by the parties is accepted. The
appellants are acquitted under Section 324 IPC on the basis of
compromise. The appellants are on bail. They need not surrender. Their
bail bonds are cancelled.
Appeal in respect of appellant Saghir Ahmad stands abated on
account of his death.
Let the copy of this judgement alongwith the trial court’s record be
sent to the Court concerned within a week.
1.7.2010
KU/-