Safiya Malik

The High Court of Uttarakhand at Nainital, Single Bench of Justice Pankaj Purohit, dismissed a criminal appeal challenging the conviction of the appellant under Section 307 of the Indian Penal Code and Section 25 of the Arms Act. The judgment, reserved on 3rd March 2025 and delivered on 7th May 2025, upheld the trial court's sentence of rigorous imprisonment along with fines and compensation, reaffirming the evidentiary weight of an injured witness whose testimony remained consistent and unshaken during cross-examination.

The court ordered the appellant, who was on bail, to surrender immediately for the execution of the sentence, cancelling his bail bonds and discharging his sureties. It also directed that the Trial Court Records be sent for consignment.

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The case originated from an incident dated 23rd November 2005 around 4:00 P.M., when Kumari Naila, daughter of the complainant Safdar Khalil, was standing on the terrace of her neighbour Liaqat's house and conversing with her friend Aarti. During this time, the accused, Azam, son of Liaqat, allegedly shot her from behind with a country-made pistol and fled the scene.

Following the incident, an FIR was registered at P.S. Gang Nahar, District Haridwar. The District Magistrate granted sanction to prosecute the accused under Section 25 of the Arms Act. Two separate charge-sheets under Section 307 IPC and Section 25 of the Arms Act were filed and later consolidated into a joint trial.

Charges were framed on 12th April 2006 by the Additional Sessions Judge, Haridwar, and were read and explained to the accused, who pleaded not guilty. The prosecution examined eight witnesses: PW1 Safdar Khalil (complainant), PW2 Naila Parveen (victim), PW3 Toshif (victim’s brother), PW4 Dr. Hemant Gupta, PW5 Dr. Ajay Mohan Agarwal, PW6 Constable Arvind Singh, PW7 HCP Rohitash Singh, and PW8 SHO M.S. Bisht.

PW1, the complainant and father of the victim, deposed that he heard a gunshot and rushed to the spot with his son and a neighbour, finding his daughter lying in a pool of blood. He saw the accused fleeing with a pistol. When they attempted to apprehend him, he threatened them and escaped. PW1 explained that the victim was taken to Dr. Hemant Gupta as no surgeon was available at the government hospital.

PW2, the injured victim, testified that the accused approached her carrying a pistol and said, "I am roaming behind you for so many years and now you are denying marriage with me," before shooting her near the waist. Her testimony remained consistent under extensive cross-examination.

PW3, the victim’s brother, corroborated the events, stating he reached the scene upon hearing the gunshot and saw his sister bleeding. He supported the version that the accused fled the scene while brandishing the pistol.

PW4 and PW5, the attending doctors, confirmed that the victim was brought with gunshot injuries, which they reported to the police. They authenticated the medical reports submitted as Exhibit Ka-2 and Ka-3.

PW6 Constable Arvind Singh stated that based on a tip-off, he and other police officers apprehended the accused at Rampur Chungi the same evening, recovering a country-made pistol from him.

PW7 and PW8, the investigating officers for the Arms Act and IPC charges respectively, verified the procedural documents including charge sheets, FIR, arrest memo, and recovery memo. Their testimonies were also consistent under cross-examination.

The defence contended that the prosecution failed to prove motive and that the delay in the arrival of the witnesses at the scene, along with the non-examination of the independent eye-witness Aarti, rendered the case doubtful. It was also argued that the prosecution was motivated by a monetary dispute between the complainant and the accused.

The prosecution argued that the testimonies of the victim and supporting witnesses remained unshaken and consistent throughout, and that the conviction could be sustained solely on the basis of the injured witness’s evidence.

Justice Pankaj Purohit recorded that the victim’s version was "very natural and candid" and that she had "fully supported the prosecution story and there is no material contradiction in her statements." Noting her status as an injured witness, the court relied on established legal principles cited from Balu Sudam Khalde and Anr. Vs. State of Maharashtra (2023 SCC OnLine SC 355): "The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition."

The court further held:

Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

The court found that the delay in the arrival of family members was adequately explained and did not affect the veracity of their testimonies.

Regarding the absence of the independent witness Aarti, the court stated: "This can be overlooked particularly in a country like India where people are reluctant to visit courts as witnesses." The court found no merit in the defence’s claim of financial enmity, terming it a "bald suggestion" lacking evidentiary support.

On the issue of the victim receiving treatment in a private hospital, the court accepted the explanation provided by the complainant that no surgeon was available in the government hospital.

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The judgment concluded that the prosecution had successfully proved the charges beyond all reasonable doubt and no grounds existed to interfere with the findings of the trial court.

Accordingly, the appeal was dismissed. The court stated: "The appeal preferred by the appellant being bereft of any merit is dismissed. The judgment and order under challenge is accordingly affirmed. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall surrender immediately to serve out the sentence."

The court further ordered: "Let the TCR be immediately sent to lower court for consignment."

Advocates Representing the Parties

For the Appellant: Mr. Mohd. Alauddin

For the Respondent: Mr. Vipul Painuly, Mr. Mohd. Safdar

Case Title: Azam vs. State of Uttarakhand

Case Number: Criminal Appeal No.110 of 2007

Bench: Justice Pankaj Purohit

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