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2026 DAILYLAW 4479 (ALL)

Shalauddin v. State of U. P.

2026-04-01

Avnish Saxena

body2026
JUDGMENT : AVNISH SAXENA, J. 1. Heard, Shri Dharmendra Kumar Chaubey, learned counsel, holding the brief, Sri Intekhab Alam Khan, learned counsel appears on behalf of both the appellants and Sri Raj Shekhar Srivastava, learned A.G.A. for the State. 2. The present criminal appeal has been preferred by the accused appellants on being aggrieved by the conviction and sentence dated 11.10.1988 passed by 2 nd Additional Sessions Judge, Ghazipur in Session Trial No. 208 of 1986 (State Vs. Shalauddin and another) arose out of Case Crime No. Nil, under Sections 147, 148, 307 IPC [later on entered the Case Crime No. 10 of 1986], P.S.- Kotwali Sadar, District- Ghazipur, whereby the trial judge has convicted the accused for offence under Sections 148 and 307 read with Section 149 IPC and sentenced each accused of one year rigorous imprisonment for offence under Section 148 IPC and four years rigorous imprisonment for offence under Section 307 read with Section 149 IPC (sic. Section 149 IPC not mentioned in charge). 3. The prosecution case set out from the FIR dated 19.01.1986 lodged at 17:40 hours reveals that it is registered on the basis of written information sent by the injured informant Moinuddin Khan S/o Ibrahim, R/o Tajpur Kurra P.S. Dildar Nagar, District Ghazipur got written by Mohd. Ali Khan, S/o Munnawar of the same village disclosing therein that on 19.01.1986 at about 8:30 a.m. the injured Moinuddin Khan was going to Dildar Nagar at his Picture Hall from his village Tajpur Kurra. He reached one kilometer from the village to the north west corner of Teliyabag, where the accused appellants Salauddin S/o Badshah Jyada Khan and Kamaluddin @ Jokhan S/o Shahjad Khan along with three other miscreants, wielding Ballam and Gandasa, had challenged the injured. Shalauddin was having rifle and Kamaluddin was having gun in their hands. They suddenly came out from the heap of puwal (straw). Shalauddin has exhorted that the victim shall not be escaped this time, on which Shalauddin and Kamaluddin have started firing at the injured. Injured ran towards nearby culvert (Puliya) to save himself. While running to the place he was hit by a bullet. To save himself he has taken out his revolver and took position. Seeing the revolver in the hand of the injured, the accused appellants have stopped at a distance and kept on firing. The injured saw Rashid Khan S/o Rauf, Mohd. While running to the place he was hit by a bullet. To save himself he has taken out his revolver and took position. Seeing the revolver in the hand of the injured, the accused appellants have stopped at a distance and kept on firing. The injured saw Rashid Khan S/o Rauf, Mohd. Ali S/o Munawwar and Tasadduk Hussain Khan S/o Ibrahim of his village and cried for help. After hearing the firing other villagers also came to the place. The accused then sprinted away threatening the persons gathered at the place. The accused appellants were nurturing old enmity with the informant and tried to kill him earlier, as well. The persons gathered took the injured to Ghazipur hospital for treatment. 4. The charge sheet is submitted against two appellant, as the three miscreants who were stated to be present at the place of incident remain fugitive and unidentified. 5. The injured Moinuddin Khan was treated at district hospital Ghazipur where Dr. A.K. Srivastava has carried out the medico legal examination of the injured on 19.01.1986 at 11:00 a.m. and found two firearm injured on the person of injured. The injuries are reiterated underneath:- “1) Gun shot wound of entry 0.5cm x 0.5cm x deep. Kept under observation. Adviced X-ray chest on the right side of back (upper) 10cm below right shoulder joint. Margin inverted. Fresh bleeding present . 2) Gun shot wound of entry 0.5cm 0.5cm x deep. Kept under observation. In the right side. Upper back 12cm below injury no. 1. Adviced X-ray chest. Margin inverted. Fresh bleeding present.” It is opined that the injuries are caused by firearm. It is also mentioned that police has been informed and patient admitted. This medico legal injury report is proved by PW-10 Dr. A.K. Srivastava as Exhibit KA-11. The X-ray report is proved by Dr. Kamta Prasad PW-8, as Exhibit KA-6, wherein it is found that ‘four radiopaque metallic shadow (big size pellets) are seen in right side chest.’ It is made clear that there is no supplementary medical report and x-ray plates filed by the prosecution during the trial and not even an iota of reference by the trial Judge in the judgment. 6. After submission of chargesheet, the charges have been framed against both the appellants on 15.01.1987. 6. After submission of chargesheet, the charges have been framed against both the appellants on 15.01.1987. The perusal of the charge shows that both the accused were firstly charged for offence under Section 148 IPC and secondly, charged for offence under Section 307 IPC (The contents of charge reflects invoking the offence of attempt to murder in furtherance of common object with deadly weapon but Section 149 IPC is not mentioned in the charge). Though, the order framing charge reveals that the charge under Section 307 read with Section 149 IPC is framed against the accused. 7. Prosecution has produced six witnesses of fact including the injured and scribe of written information, namely PW-1 Mohd. Kuddus Khan, who is the witness of memo of recovery of brick, carrying bullet mark; PW-2 Mohd. Hanif, who is the witness of recovery of Kurta and Sweater of injured, soaked in blood; PW-3 Mohd. Ali Khan, the scribe of written information and an eye witness; PW-4 Abdul Rashid Khan, an eye witness; PW-5 Tasadduk Hussain Khan, an eye witness; and PW-6 Moinuddin Khan, the injured and informant. The prosecution has also produced four formal witnesses namely PW-7 H.C. Bihari Pandey, the scribe of Chik FIR and G.D.; PW-8 Dr. Kamta Prasad, Radiologist who has given X-ray report; PW-9 Dashrath Tiwari, who has been produced as secondary witness for Late Inspector Doodh Nath Upadhyay, the Investigating Officer; and PW-10 Dr. A.K. Srivastava, who has conducted medico legal examination of injured. 8. The prosecution has proved 10 exhibits from Exhibit Ka-1 to Ka-11 [Exhibit Ka-8 is inadvertently jumped and numbered as Exhibit Ka-9 and so on], but not taken into consideration in the judgment. 9. The prosecution has proved three material exhibits 1 to 3, the brick, Kurta and Sweater, respectively. 10. The accused appellants in the statement under Sections 313 CrPC had denied all the inculpatory evidences and stated that they have been falsely implicated in this case due to previous enmity between the parties. It is also mentioned that previously the injured has leveled charge of attempt to murder but the accused appellants were acquitted by the court. 11. In the defence they have filed the certified copies of the judgments and the certified copy of the statement of Tasadduk Hussain Khan who did not support the prosecution case in the previous trial. 12. It is also mentioned that previously the injured has leveled charge of attempt to murder but the accused appellants were acquitted by the court. 11. In the defence they have filed the certified copies of the judgments and the certified copy of the statement of Tasadduk Hussain Khan who did not support the prosecution case in the previous trial. 12. Learned counsel for the appellants has submitted that the incriminating weapon has not been recovered. There is a previous history of enmity between the parties. The charge of common object has been levelled against the accused, despite the fact that the accused are two in number and the remaining three accused have never been traced or arrested or charge sheeted, as the three unnamed and unidentified accused were non existent. PW-6 Moinuddin Khan, who is the injured witness, absconded, which led the trial court to issue process under Section 82 CrPC to procure his presence for examination. The case thrusted upon the accused appellants is false and bogus case. There is marked delay in lodging the FIR, which is unexplained and was for concocting story against the accused appellants. The prosecution witnesses 3 to 5 claimed themselves to be the eye witnesses of the incident, but their place is not shown in the site plan. They are relative and tutored witnesses. The medico legal examination report is fabricated. The x-ray plate is not produced before the trial court in corroboration with the statement of radiologist-PW 8. The Investigating Officer has wrongly investigated case under the influence of informant, who runs the cinema hall. The secondary witness produced by the prosecution merely proved the site plan and charge sheet. Lastly submits that the trial court has convicted the accused appellants without considering the cross examination of the witnesses in the attendant circumstances. Hence submitted that the accused appellants are liable to be acquitted. 13. Learned AGA submits that the matter pertains to offence of attempt to murder where the victim PW-6 has lodged the FIR disclosing the name of accused appellants that the incriminating shot has been fired by Salauddin after exhortation. The injury report proved by the two medical witnesses PW-8 and PW-10 have specifically stated above that the injury suffered by the informant victim was the gun shot injury. The injury report proved by the two medical witnesses PW-8 and PW-10 have specifically stated above that the injury suffered by the informant victim was the gun shot injury. The prosecution has proved the recovery of brick from the culvert in the statement of PW-1, which carries the bullet mark. The sweater and Kurta of the injured was also recovered, the memo of the same was proved by PW-2 Mohd. Hanif. FIR and G.D. Entry have been proved by PW-7 scribe of Chik FIR and G.D. All the witnesses have proved the case against the accused beyond the shadow of duty. The presence of three eye witnesses, who have supported the prosecution case cannot be belied. Hence, submitted that the appeal is devoid of merit and liable to be dismissed. 14. This Court has taken into consideration the rival submission of the parties and perused the record. 15. Before dealing with the judgment of the trial court convicting the accused appellants invoking the provisions of common object, despite the fact that for the purpose of framing the charge of common object there must be five or more persons, it would be expedient to proceed with the case along with the arguments raised by the learned counsel for the parties. 16. The points of concern in the present appeal are:- 16.1. Whether the trial court has rightly convicted the accused appellants for the offence of attempt to murder in furtherance of common object, despite the fact that the charge sheet is submitted against two accused, who were charged for the offence of common object? 16.2. Whether the trial court has rightly appreciated the entire evidence in the right perspective, considering the facts and circumstances of the case pertaining to delay in FIR and testimony of interested witnesses? 17. So far as the allegation against the accused appellants that they have committed the offence being members of the unlawful assembly with the design to eliminate the informant Moinuddin in furtherance of common object, the contents of the FIR is quite relevant. It is disclosed in the written information Exhibit Ka-3 written by PW-3 Mohd. Ali Khan on the dictation of PW-6 Moinuddin Khan that the accused appellant Salauddin was having rifle in his hand and Kamaluddin @ Jokhan was wielding a gun and three other anonymous persons wielding Ballam and Gadasa in their hands came out from the heap of straw. It is disclosed in the written information Exhibit Ka-3 written by PW-3 Mohd. Ali Khan on the dictation of PW-6 Moinuddin Khan that the accused appellant Salauddin was having rifle in his hand and Kamaluddin @ Jokhan was wielding a gun and three other anonymous persons wielding Ballam and Gadasa in their hands came out from the heap of straw. The details and description of other three unnamed accused has never been revealed in the investigation and no effort has been made to get their identity disclosed. The charge sheet is submitted against two appellants without disclosing that the investigation is continuing against the unnamed three accused. The trial court has not only framed charge under Section 148 IPC against the appellants but has also convicted them without proving their being members of unlawful assembly. 18. It is pertinent to point out here that the definition of unlawful assembly provided under Section 141 IPC clearly mandates the assembly of five or more persons having a common object to compose the assembly to carry out the sinister design. In the present case it is apparent that the three accused who remain unidentified have merely been disclosed to attract Section 141 IPC. 19. In the case of Mohan Singh and another Vs. State of Punjab , 1962 SCC OnLine SC 82; AIR 1963 SC 174 , a Five Judges Bench of Hon’ble the Supreme Court headed by the Chief Justice way back in 1962 have considered the requirement and ingredients of the offence carried out by the unlawful assembly in furtherance of ‘common object’. Relevant paragraphs 8 and 9 are reiterated underneath:- “8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly. 9. In dealing with the question as to the applicability of Section 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the criminal courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted. Similarly, less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the Court along with unidentified and un-named assailants or members composed an unlawful assembly, those before the Court can be convicted under Section 149 though the un-named and un-identified persons are not traced and charged. Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then Section 149 cannot be invoked. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then Section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under Section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under Section149 because on the evidence the Court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly un-named and un-identified may conceivably raise the point as to whether prejudice would be caused to the persons before the court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the Court of facts from holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under Section 149 is framed.” 20. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under Section 149 is framed.” 20. As the appellants were shown to be the part of unlawful assembly who were charged for the offence of rioting, armed with deadly weapon. There is no evidence on record to show when the unlawful assembly was created and when the common object to eliminate injured was found, but complete evidence is to be marshalled to reach to the conclusion. 21. Now the point of concern is the role of accused for the offence of attempt to murder. 22. As per the written information Exhibit Ka-3 the injured PW-6 Moinuddin was going to his cinema hall at Dildarnagar from his residence at Village Tajpur Kurra P.S.- Dildarnagar. At about 8:30 a.m. when he reached one kilometre from his village near the North West corner of Teliyabag, Salauddin having rifle and Kamalluddin @ Jokhan having gun suddenly came out from the heap of straw, they have exhorted and fired at Moinuddin. He ran to the culvert to save himself and taken out his revolver. He has taken position to fire on the accused appellants, and also cried for help, hearing which the witnesses namely Mohd. Ali Khan PW-3, Abdul Rashid PW-4 and Tasadduk Hussain Khan PW-5 reached to the spot. The accused appellants then sprinted away. 23. PW-3 Mohd. Ali Khan, PW-4 Abdul Rashid Khan and PW-5 Tasadduk Hussain Khan in their examination in chief repeated the same story, verbatim as is mentioned in the FIR. Mohd. Ali Khan and Abdul Rashid Khan are the real nephews of injured- Moinuddin Khan, whereas Tasadduk Hussain Khan is the real brother of Moinuddin Khan. The inconsistency in their statement is about the firing by injured Moinuddin from his revolver, which is denied by the informant in his deposition as PW-6. 24. It is consistent statement of three witnesses of fact namely PW-3 to PW-5 that they were present at the time of incident. The incident took place at 8:30 a.m. They have taken the injured to his cinema hall from where the injured was taken to District Ghazipur. 24. It is consistent statement of three witnesses of fact namely PW-3 to PW-5 that they were present at the time of incident. The incident took place at 8:30 a.m. They have taken the injured to his cinema hall from where the injured was taken to District Ghazipur. On questioning to the eye witnesses and the injured witness PW-6 that they have not reported the matter at the concerned police station but has lodged report at Police Station- Kotwali Ghazipur had replied that for better treatment the victim was taken to District Hospital Ghazipur from where the injured has dictated the FIR to PW-3 Mohd. Ali Khan and send it to P.S.- Kotwali. It seems a plausible answer. In such circumstances the other facts is also required to be seen, because the witnesses are related therefore their testimony is to be closely scrutinized and not discredited merely because they are related. As is laid down by Hon’ble the Supreme Court in the cases of Ashok Kumar Chaudhary Vs. State of Bihar , (2008) 12 SCC 173 ; M. Nageshwara Reddy Vs. State of Andhra Pradesh and others , (2022) 5 SCC 791 , State of Punjab Vs. Gurpeet Singh and others , (2024) 4 SCC 469 , and plethora of other cases and became a settled law. 25. Medico legal examination report Exhibit Ka-11 is prepared by Dr. A.K. Srivastava PW-10. This witness has stated that the injured has suffered gun shot injury. The examination of injured is carried out on 19.01.1986 at 11:00 a.m. In his cross examination he has stated that the gun shot injury may be ten hours old. It skipped the attention of prosecution, defence and trial court that the injury report does not contain either the signatures or the thumb impression of the injured Moinuddin Khan, though there are specific space provided in the document for left hand thumb impression of the injured. The vagueness of medico legal examination report is further attributed to the fact that the Doctor PW-10 has admitted the patient and informed the police, there is nothing on record to show that the police was informed and the injured was admitted in the hospital. It is further required to be considered that the injured himself was produced in the hospital through Mohd. Rashid Khan. It is further required to be considered that the injured himself was produced in the hospital through Mohd. Rashid Khan. There is not even an iota of reference made in the medico legal examination report that how the injured suffered the gun shot injury and about the time of the injury. The x-ray report exhibited as Exhibit Ka-6 is proved by PW-8 Dr. Kamta Prasad, Radiologist. This report is on plain paper dated 19.01.1986 shows that ‘four radiopaque metallic shadow (big size pellets) are seen in the right side of chest.’ This report is not supported by the x-ray plate. The x-ray plate in such circumstances becomes an important material to establish the gun shot injury suffered by PW-6 Moinuddin Khan. 26. This Court has already observed that the doctor while entering the medico legal examination report had mentioned that the police has been informed. This information, if found to be true might have been given after 11:00 a.m. to the police and at no stretch of imagination after lodging of the FIR at 17:40 hours. This puts a dent on the prosecution case about the gunshot injury. 27. The written information was written by Mohd. Ali Khan PW-3 and send to P.S.- Kotwali District- Ghazipur. PW-7 H.C. Bihari Pandey has proved the chik FIR and G.D. No. 40 Exhibit Ka 4 & 5 which reveals that Rashid Khan and Rauf Khan came to the police station with the written report. In his cross examination he has stated that the injuries of the injured has not been mentioned in the G.D. The delay in lodging of the FIR is not explained by the prosecution. The previous enmity between the accused appellants and injured is not only reflected from the statement of eye witnesses and the injured but the certified copy of previous accusation and acquittal of the accused is established by the defence in filing the certified copies of the judgment. 28. The trial court has found the eye witnesses as trustworthy and the injured witness having suffered the gun shot injury proved by the doctor without considering the glitches in the prosecution case. These glitches which are discussed here-in-above are material in nature and pointing towards the fact that concocted FIR has been lodged by informant belatedly against the appellants implicating them for the offence of attempt to murder. 29. These glitches which are discussed here-in-above are material in nature and pointing towards the fact that concocted FIR has been lodged by informant belatedly against the appellants implicating them for the offence of attempt to murder. 29. The entire oral and documentary evidence upon appreciation leading to the bundle of facts that the injured suffered gunshot injury at 8:30 a.m. in the presence of witnesses but reached hospital only at 11:00 a.m. without informing police, waited for the whole day for registration of F.I.R., which was finally registered at 5:40 p.m. There is no explanation for delay. The previous enmity is disclosed in the F.I.R. and gives ample reason for false implication, which further gives impetus when medico- legal examination report did not carry the signature or thumb impression of injured on it, with no document of admission or X-ray plate or supplementary medical report filed to show that it is the injured who was treated. The falsity and vagueness of prosecution case in showing the presence of five accused with three unnamed, unidentified and without description about their built, physique, complexion and features for identification. Thus, the prosecution has utterly failed to establish guilt of accused, who shall be given benefit of doubt. 30. In the case of Jitendra Kumar Mishra alias Jittu Vs. State of Madhya Pradesh , (2024) 2 SCC 666 ; Hon’ble the Supreme Court held that an appellate court should be slow in interfering with conviction recorded by courts below but where evidence on record indicates that prosecution has failed to prove guilt of accused beyond reasonable doubt and that a plausible view, different from one expressed by trial court, can be taken. The appellate court should not shy away in giving benefit of doubt to the accused. 31. Thus, the judgment of conviction and sentence dated 11.10.1988 passed by 2 nd Additional Sessions Judge, Ghazipur in Session Trial No. 208 of 1986 (State Vs. Shalauddin and another) arose out of Case Crime No. 10 of 1986, P.S.- Kotwali Sadar, District- Ghazipur, is hereby set aside. 32. The appellant no. 1 Shalauddin and appellant no. 2 Kamaluddin are acquitted for offence under Sections 148 and 307 read with Section 149 IPC. 33. Accordingly, the criminal appeal is allowed. 34. The material exhibits shall be disposed of as per law.