Kamil vs The State Of Uttar Pradesh

2. Brief facts of the case are that on 03.01.1986 at about 09.00 AM, complainant-Baboo Khan (PW-3) who is the maternal uncle of deceased Akhlaq was informed by his father that his Digitally signed by MAHABIR SINGH sister’s daughter Parveen had gone to fetch water from the tank Date: 2018.10.31 16:32:32 IST Reason: where accused Rashid (A1) and Adil (A3) had misbehaved with her. 1 However, no further action was taken by them to save their reputation. On the same day, at around 04.00 PM, when complainant/PW-3 along with his nephew deceased Akhlaq and Aadil Hussain (PW-2) were going towards his shop, they saw accused Rashid armed with knife, Nasir (A2) armed with hockey, accused Adil and appellant-Kamil (A4) armed with danda in their hands coming towards them and surrounded PW-1, deceased Akhlaq and PW-3. Thereafter, appellant-Kamil gave a danda blow on the head of PW-2 and when deceased Akhlaq tried to snatch the hockey stick from accused Nasir, appellant-Kamil also gave a danda blow on the head of deceased from behind and when he tried to run away, accused Nasir and Adil caught hold of deceased and thereafter accused Rashid stabbed the knife in the chest of deceased on which deceased fell down on the ground with the knife which was stabbed on his chest. On raising alarm by PW-3, Jamal Uddin (PW-1) along with other people came there for help. Thereafter, all the accused ran away and deceased was taken to the hospital, where he died. Upon completion of investigation, charge sheet was filed against the accused persons.

5. Being aggrieved, the appellant/accused filed appeal before the High Court which came to be dismissed vide impugned judgment dated 28.07.2014. Further, appeal preferred by the accused Nasir before the Supreme Court in SLP(Crl) No.9886 of 2014 was dismissed vide order dated 22.01.2015.

6. Prosecution relies upon the evidence of eye-witness Babu/Baboo Khan (PW-3), Jamaluddin (PW-1) and Aadil (PW-2) who have categorically stated that on the date of incident i.e on 03.01.1986 at 04.00 PM, PW-3 along with his nephew deceased Akhlaq and Adil Hussain (PW-2) was going to his shop at Jogipura 3 and when they reached near the temple at Lalpur, they saw all the four accused persons standing and waiting for them. PW-3 further deposed that at that time accused Rashid was having knife in his hand whereas accused Nasir and Kamil were having hockey and danda in their hands respectively. Immediately thereafter, appellant/accused Kamil gave a danda blow on the head of Adil Hussain (PW-2). When deceased Akhlaq tried to snatch hockey stick from accused Nasir, appellant/accused Kamil gave a danda blow on the head of deceased Akhlaq from behind. When deceased Akhlaq tried to run away in order to escape himself, accused Nasir and Adil caught hold of his both hands and at the same time, appellant/accused Kamil assaulted Adil (PW-2) with danda. When PW-3 snatched danda from appellant/accused Kamil and tried to retaliate to the attack with the same danda, accused Rashid pierced knife in the chest of deceased Akhlaq. At this, PW-3 shouted for help and on hearing this, Jamaluddin (PW-1), Afsar Ali Khan and Shamshad Hussain who were taking tea at the stall of PW-3 rushed towards the spot. On seeing them, accused persons fled away from the spot. Thereafter, PW-3 took a cycle-rickshaw and took deceased Akhlaq to district hospital. Deceased Akhlaq was struggling for his life as the knife was still penetrated in his heart. PW-3 deposed that he himself took out the knife from the chest of 4 deceased. In the hospital, deceased succumbed to injuries. The evidence of PW-3 and injured eye-witnesses Aadil Hussain (PW-2) and Jamaluddin (PW-1) is cogent and consistent.

Thirdly:- That on aforesaid date, time and place you Kamil and Nasir along with Rashid and Adil formed common intention to cause hurt to Adil and anyone else and in furtherance of said common intention Adil voluntarily caused hurt to Adil and you thereby committed an offence punishable under Section 323/34 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried by this court on the said charges.

23. It is also pertinent to point out that the appeal preferred by the similarly situated co-accused Nasir has been dismissed by this Court. A conviction for the substantive offence without a charge can be set aside only if the accused shows that prejudice has been caused to him and that “failure of justice” has occasioned thereby. No such argument was ever made before the trial court or before the High Court. As discussed above in our considered view, no prejudice has been caused to the accused nor failure of justice has been shown to have been occasioned warranting interference with the impugned judgment.

24. In the result, the appeal is dismissed.

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