SHAKOOR v. STATE — 1997 DIGILAW 923 (ALL)

K. D. SHAHI, J. ( 1 ) THIS appeal arises out of judgment and order of Shri R. N. Agarwala, the then I Additional Sessions Judge, Rampur in Sessions Trial No. 75 of 1979 whreby he has convicted accused Hanif under Section 302, I. P. C. and accused Shakoor under Section 302 read with Section 34, I. P. C. Accused Hanif has been sentenced to life imprisonment and to pay a fine of Rs. 200. 00 and accused Shakoor has been sentenced to imprisonment for life and to pay a fine of Rs. 100. 00 and in default of payment of fine to undergo one months R. I. more. ( 2 ) THE facts of the case are, that Babban, the informant lodged FIR on 14-11-1978 at about 8. 30 p. m. at Police Station, Swar of District Rampur that in the morning of 14/11/1978, the son of accused Shakoor had thrown brickbats in the house of Haji Abdul Haq when he had gone out. Abdul Khaliq, the grandson of the informant went to make a complaint to Shakoor in front of his house at about 8. 00 p. m. on the same day (14-11-1978), in the meantime, the son of accused Shakoor, namely, Hanif brought a knife from his house and started to advance filthy abuses. On hearing the alarm, Amir Ahmad, Farzad (PW-3) and Shabbir (PW-2) came there. In the meantime, Shakoor caught hold of Abdul Khaliq from behind and asked his son "what was he looking, kill the Ssala. " On this exhortation, accused Hanif Assaulted Abdul Khaliq in the abdomen by knife. The informant and other persons saw the occurrence in the light of electricity. On the exhortation given by the informant, both accused fled away towards north in the Gali, Abdul Khaliq rushed to his house unsteadily and fell down in an unconscious State. While the victim was being taken to the police station, he succumbed to his injuries in the way. The informant went to the police station and dictated the FIR to the Constable. He recorded the FIR in the Chick and a case was registered in the G. D. A copy of the FIR is Ext. Ka-1 on the record of the lower Court. Thereafter, other formalities, inquest etc. were completed. The dead body was sent for postmortem examination. PW-5, Dr. He recorded the FIR in the Chick and a case was registered in the G. D. A copy of the FIR is Ext. Ka-1 on the record of the lower Court. Thereafter, other formalities, inquest etc. were completed. The dead body was sent for postmortem examination. PW-5, Dr. N. M. Agarwal of District Hospital, Rampur conducted the postmortem examination on 15-11-1978 at 4. 00 p. m. and found the following injuries on the person of the deceased:-1. Incised stabwound 2. 5cm x 1cm x chest and abdominal cavity deep on right side chest, 17cms below nipple at 7 Oclock position in VIII intercostal space and the wound was having direction backward, inward and upward. 2. Incised stab wound 2cm x 2cmxchest and abdominal cavity deep on right side chest, 3cm outer and below to injury No. 1 The wound was having direction backward and inward. ( 3 ) ON internal examination, the Doctor found thorax cut. He also found incised wound in the walls, ribs and cartilages in right VIII and X in the scal (sic) space under both the injuries. In the abdominal cavity 1 1/2 pint blood was found and in the stomach there was 10 ounce semi digested food. ( 4 ) AFTER the investigation was complete, a charge-sheet was filed in the Court and on committal of the case the then Sessions Judge charged accused Hanif under Section 302, I. P. C. while accused Shakoor was charged under Section 302 read with Section 34, I. P. C. both for having murdered Abdul Khaliq in furtherance of their common intention to kill Abdul Khaliq by inflicting knife injuries on 14-11-1978 at 8. 00 p. m. in village Rasoolpur. The charges were read over to the accused persons in Hindi. They pleaded not guilty to the charges and claimed to be tried. ( 5 ) THE prosecution examined as many as six witnesses in the Court of the learned Sessions Judge. PW-1, Babban narrated the motive of throwing brickbats in the early hours of the day and thereafter protest made by Abdul Khaliq in the evening. He stated that in front of the door of Abdul Khaliq at a distance of two-three steps a talk was going on between Abdul Khaliq and Shakoor accused and in the meantime the witnesses came there and thereafter the son of Shakoor came along with knife. He stated that in front of the door of Abdul Khaliq at a distance of two-three steps a talk was going on between Abdul Khaliq and Shakoor accused and in the meantime the witnesses came there and thereafter the son of Shakoor came along with knife. Accused Shakoor caught hold of Abdul Khaliq and exhorted whereupon accused Hanif assaulted twice in the abdomen of the victim. He further stated that there was light of electricity and it was only on exhortation of the witnesses that the accused ran away and Abdul Khaliq rushed in his house by pressing the injury by his hand. While the victim was being taken to the police station, he died in the way. Thereafter, the informant proved the FIR. In the cross- examination, the informant admitted that Farzand is distantly related to him, but he had got no relationship with other witnesses. He also stated that the occurrence took place on the day of Id, and he was at his residence. He admitted that brick bating did not take place in his presence, but he witnessed the occurrence in the evening. He was also cross examined regarding the mode and manner of the assault, but nothing could be gained in the cross examination. The last suggestion to him was that he was not present at the time of the occurrence and did not see the occurrence. ( 6 ) P. 2, Shabbir is a resident of different Mohalla of the same village. He stated that he had come to the house of his sister and he saw the occurrence. In the cross-examination, he stated that the occurrence took place in front of the house of Shakoor itself. Accused Shakoor caught hold of the victim and accused Hanif assaulted him. This cross-examination was probably done with the intention to prove that the occurrence took place at the door of the accused, but there is no defence case that the victim had attacked over the accused persons and in self defence at their door itself the accused caused injuries to the victim. The site plan will show that the houses of the accused persons as well as the victim are in front of each other and there is Raasta in between their houses. The site plan will show that the houses of the accused persons as well as the victim are in front of each other and there is Raasta in between their houses. One can say that occurrence took place in front of the house of Shakoor and the other can also say that the occurrence took place in front of the house of the victim. ( 7 ) PW-3, Farzand is also a resident of the vicinity. His house is just in the east of the house of the victim as shown in the site plan. He is a natural and probable witness and he has corroborated PW-1, Babban, the informant, on all material aspects of the case. He stated that after the assault, Abdul Khaliq went inside his house where he fell on the ground. He further stated that while the victim was being taken to the police station, he died in the way. He stated that he had heard the alarm of PW-1 Babban and had gone to the place of occurrence. In the cross examination, the witness admitted that the Investigating Officer had gone to the spot and therefrom he came back after fifteen minutes and, thereafter, the FIR was written. ( 8 ) PW-4 Abdul Hamid is a witness of the discovery and recovery of the knife on the statements of the accused persons under Section 27 of the Evidence Act, Abdul Majeed filed an affidavit. He is a witness of taking blood stained and simple earth from the house of the victim. Similarly Thamman Singh, constable had taken the dead body to the hospital for postmortem examination along with the police papers. ( 9 ) PW-5, Dr. N. M. Agarwal conducted the postmortem examination on the dead body. He proved the injuries found on the person of the deceased. He stated that both the injuries were sufficient in the ordinary course of nature to cause the death. He stated that the injuries were probably caused by knife. ( 10 ) PW-6, S. I. Roop Singh Chauhan is the Investigating Officer of the case. He proved the investigation and the police papers. He also proved the statements of the accused persons and the confession made by them. He also proved the recovery of the knife under Section 27 of the Evidence Act. After the prosecution closed its evidence, the statements of both the accused persons were recorded. He proved the investigation and the police papers. He also proved the statements of the accused persons and the confession made by them. He also proved the recovery of the knife under Section 27 of the Evidence Act. After the prosecution closed its evidence, the statements of both the accused persons were recorded. They denied the entire prosecution story. They did not put in any case in their defence. However, accused Hanif stated his age to be 16 years on the date of his statement under Section 313 of the Code of Criminal Procedure. He further stated that he was not in the village on the date of occurrence and on 17-11-1978 he had gone to the police station alongwith his father and there both of them were arrested and false recovery of knife was shown. There is no evidence on this point that both the accused persons had gone to the police station and there they were arrested. The FIR was lodged on 14-11-1978 itself. The police station is at a distance of one furnlong from the place of occurrence. It is wholly unbelievable that the accused persons had gone to the police station after three days of the occurrence when they had already been made accused in the murder case and, therefore, the statement of accused Hanif to this effect does not inspire confidence. The accused did not examine any witness in their defence. ( 11 ) AFTER hearing learned counsel for the parties the then Ist Additional Sessions Judge, Sri R. N. Agarwal convicted accused Hanif of the charge under Section 302, I. P. C. and accused Shakoor of the charge under Section 302 read with Section 34, I. P. C. and sentenced both of them to undergo rigorous imprisonment for life and also directed to pay a fine of Rs. 200. 00 and Rs. 100. 00 respectively. ( 12 ) BEING aggrieved by the said conviction and sentence the present appeal has been preferred by both the convicts. ( 13 ) WE have heard the learned counsel for the parties and gone through the record of the case. In this case, the factum of death rather murder of the victim is admitted. His identity has also not been challenged. The only statement of the accused persons is that they did not commit this crime. ( 13 ) WE have heard the learned counsel for the parties and gone through the record of the case. In this case, the factum of death rather murder of the victim is admitted. His identity has also not been challenged. The only statement of the accused persons is that they did not commit this crime. They are innocent, but it is nowhere said that victim is alive and has not been murdered. The case of the prosecution is that these are the accused persons who committed the murder of the victim the case of the defence is bare denial. ( 14 ) A preliminary technical argument was advanced that accused Hanif was a child on the date of the occurrence and, therefore, he should not have been tried by a regular Court. Since accused Hanif has been tried by a regular Court, the entire trial is vitiated. Therefore, accused Hanif is entitled to the benefit of U. P. Children Act, 1952. He was a juvenile and he should have been tried by a juvenile Court. This plea was no where taken at the time of the committal proceedings before the learned Magistrate and also at the time of framing of the charge. ( 15 ) A lawyer to defend the accused is appointed by the accused, which is a contractual obligation. A child or minor cannot enter into any contract. In the present case, a lawyer had been engaged by accused Hanif. Therefore, it shall be presumed that accused Hanif was major otherwise he could not have engaged a lawyer. His lawyer also did not raise a plea either at the time of framing of the charge or at the trial stage that accused Hanif was a child and he could not have been tried by a regular Court. Not even a single question was put in course of cross examination of the witnesses regarding the age of accused Hanif. It was for the first time at the fag end of the trial when the statements of the accused were recorded only then accused Hanif stated his age as 16-years. The learned Sessions Judge was conscious of this fact that accused Hanif was not a child and therefore, he specifically endorsed in his own handwriting that the age of accused Hanif appeared to be between 18 and 20 years. The learned Sessions Judge was conscious of this fact that accused Hanif was not a child and therefore, he specifically endorsed in his own handwriting that the age of accused Hanif appeared to be between 18 and 20 years. Therefore, in the opinion of the learned Sessions Judge, accused Hanif was major, at least not a child and if there was any objection by the defence, they should have then and there applied that the accused be examined by the Doctor so that the real age of the accused could be ascertained. ( 16 ) AFTER the conviction, the appellants filed this appeal and in the grounds of appeal as well there is not even a whisper that the accused Hanif was a child on the date of the occurrence, but when the appeal was fixed for final hearing, the appellants applied for time to lead evidence about the age of the accused Hanif. However, he did not produce any evidence but by a detailed order a Division Bench consisting of Honble S. K. Mookherji and Honble Kundan Singh, JJ directed the Director General, Medical, Health and Services to nominate an expert to submit a report to this Court about the age of the accused Hanif. The Director appointed Chief Medical Officer, Rampur to submit his report regarding the age of accused Hanif. The Doctor examined accused Hanif on 10-5-1994 and on the basis of the X-ray reported that epiphygm at lower end of right radius and ulna have fused together with their respective shafts, and on that basis he gave the opinion that the age of Hanif was about 30 years on 10-5-1994. ( 17 ) WHAT was necessary was to give the age of the accused Hanif on 14-11-1978 but he had been examined not on 14-11-1978 but on 10-5-1994 after about 15 to 16 years. In our considered opinion, it is very difficult to ascertain as to what should have been the age of a particular person before 15 or 16 years. There is always a chance of difference of three years either way in giving the present age. This gap should be more if one has to give the age of a particular person before 15 years. The Doctor has not given any data except the X-ray in ascertaining the age of accused Hanif. There is always a chance of difference of three years either way in giving the present age. This gap should be more if one has to give the age of a particular person before 15 years. The Doctor has not given any data except the X-ray in ascertaining the age of accused Hanif. Nothing could be deciphered from the report of the Doctor on what basis he arrived at the conclusion that the age of accused Hanif was about 30 years on 10-5-1994. The age of a person can be ascertained after taking into account the relevant factors enumerated in Medical Jurisprudence viz. teeth, height and weight, ossification of bones and minor signs. These should be made the basis to form a fairly accurate opinion about the age of an individual, specially in tender age, all these factors are to be considered for determination of age. The eruption of teeth is upto 25 years of age. Similar is the position of height. It does not increase after 25 years. The ossification of bones is complete upto about 21 years. These general conditions are complete upto about 25 years and thereafter on microscopic examination only the age at older stage can be estimated. In this view of the matter, the report of the Chief Medical Officer is totally to be ignored. This Court directed that after the report is received, the export shall be summoned to prove his report, but in view of what has been stated above, it is not necessary to examine the Doctor nor it is necessary to call for any other opinion particularly when the accused Hanif did not produce any evidence as requested by him. He could have produced documentary evidence of his age, but he did not do so. ( 18 ) A Judge is an expert of all experts and the learned Sessions Judge had an opportunity to see the accused Hanif daily in his Court and to watch him closely and he has given his opinion about the age of accused Hanif as about 18 to 20 years. This opinion cannot be ignored and in view of the circumstances of the case, it is not at all proved that accused Hanif was a child on the date of the commission of this crime. Therefore the argument is answered in the negative and against appellant Hanif. This opinion cannot be ignored and in view of the circumstances of the case, it is not at all proved that accused Hanif was a child on the date of the commission of this crime. Therefore the argument is answered in the negative and against appellant Hanif. ( 19 ) COMING to the merits of the case, the FIR was attacked on the ground that it had been written after the Investigating Officer had visited the spot. The occurrence took place at 5. 00 p. m. The FIR was lodged at 8. 30 p. m. while the police station was at a distance of one furlong from the place of occurrence. ( 20 ) HAMLET Resoolpur is a part of the same Qasba Suwar in which the police station is situate. Just after the occurrence, the victim was put on a cart and was taken to the police station. There was no question of any delay. The informant was not asked anything in his cross-examination about the FIR. In para-6 it was only suggested that after the FIR the informant stayed at the police station from 10-11-to 12. 00 mid-night. The statement of the witness if taken as a whole, after the dead body was taken to the police station the inquest report etc. was prepared and thereafter the dead body was sent for postmortem examination, then naturally the informant would have stayed at the police station till all the formalities were over. It is to put the cart before the horse by arguing that since the informant stayed at the police station upto midnight it could be taken that the FIR was written at mid-night and not at 8. 30 p. m. There are obvious reasons for his staying at the police station. In the cross examination PW-3 Farzand stated that as soon as he reached the police station the Sub Inspector proceeded for the place of occurrence. He came back after 15 minutes and then the First Information Report was written. This confused statement in the cross examination will not go to show that the investigation first started and then the FIR was written. It is nowhere stated that this witness also proceeded for the place of occurrence alongwith the Sub-Inspector. He came back after 15 minutes and then the First Information Report was written. This confused statement in the cross examination will not go to show that the investigation first started and then the FIR was written. It is nowhere stated that this witness also proceeded for the place of occurrence alongwith the Sub-Inspector. Merely because the Sub-Inspector left the police station and came back after 15 minutes and, thereafter, the FIR was written, it cannot be said that he proceeded for the place of occurrence itself. He could not be a witness of this fact unless he had gone along with the Sub Inspector. Not only this the Sub Inspector was not specifically asked about this statement of Farzand but in Para-5 of his statement the Investigating Officer specifically stated that he had visited the spot about 2-1/2 A. M. He was not asked that he had first visited the spot and, thereafter the FIR was written. It is also not in the statement of Farzand that the Investigating Officer had gone to arrest the accused or to interrogate the witnesses. He specifically stated that he did not know whether the Investigating Officer had gone to arrest the accused persons. When a person goes to the police station to lodge an FIR certain queries are made. If on disclosure of the names of the accused persons, the Sub Inspector proceeded immediately to apprehend the accused persons, it cannot be said that he made investigation first and then the FIR was written at his dictate. There is nothing on the record to show that the FIR is ante time or delayed or had been written after due deliberation and consulation. ( 21 ) AS regards the motive of the case, it is said to be very trifling. There was throw of brick-bats in the morning in the house of Haji Abdul Haq. The victim had gone to lodge protest. People have become very sensitive these days and if one feels that look here he has dared to come to lodge protest, it is not unnatural that he may go to the extent of killing that person. Previous enmity is not necessary. There are eye witnesses and they have fully supported the prosecution story. In view of unimpeachable eye witnesses, the motive becomes immaterial. Even otherwise, there is also no reason for false implication. The occurrence is of 8. Previous enmity is not necessary. There are eye witnesses and they have fully supported the prosecution story. In view of unimpeachable eye witnesses, the motive becomes immaterial. Even otherwise, there is also no reason for false implication. The occurrence is of 8. 00 p. m. That was a day of festival. Everybody must be in his house or in the house of his near relation. If there is altercation and exchange of hot words, persons present in the locality or in nearby shall necessarily come to the spot and will look to the occurrence. The accused persons were well known to the witnesses. There was light of electricity. on the spot. Since the accused persons were well known to the witnesses from before, they could be fully identified and recognised even in darkness. There is no question of false implication of these accused persons and screening out the real offenders. ( 22 ) AS regards the ocular testimony of the witnesses, all the three witnesses have specifically stated and proved on oath how the occurrence took place. ( 23 ) IT was argued that the presence of the witnesses was not possible if the occurrence took place inside the house. It was also argued that at the place shown by letter A in the site plan, no blood was found instead the blood was found at place B i. e. in the house of the victim. The Investigating Officer has shown the width of the Rasta only 7 steps. The victim rushed to his house which was at a distance of about ten steps from the place of occurrence. If no blood was found at the place of occurrence and it was found inside the house, it cannot be said that the occurrence took place inside the house. It has come in the statement of PW-1, Baban, that after the assault, the victim pressed his injuries by his hand and ran inside his house. The exact words are "kokh pakar kar bhaga tha. " The victim was waring clothes. The blood must have absorbed in the clothes first and thereafter it would have fallen on the ground. But if the injury is immediately pressed, the blood shall not fall on the ground. Secondly, the victim had run only 10 steps. The exact words are "kokh pakar kar bhaga tha. " The victim was waring clothes. The blood must have absorbed in the clothes first and thereafter it would have fallen on the ground. But if the injury is immediately pressed, the blood shall not fall on the ground. Secondly, the victim had run only 10 steps. ( 24 ) IT was argued that it was not possible for the victim to have run about 10 steps after the assault. This argument is fallacious. The postmortem report shows that the victim sustained two injuries in his abdomen and other parts of the body were normal. If the body is warm, the blood is there in the body, other functionaries of the body also are working, it is not difficult for any person to run 10 steps soon after the assault. These two injuries sustained by the victim do not show that any part of the victim had been severed or the legs had been broken. Therefore, it was not at all difficult for the victim to have run 10 steps soon after the assault. In these circumstances, if the blood was found inside the house and not at the place of occurrence, the presence of the witnesses cannot be ruled out. All the witnesses have specifically stated that firstly there was exchange of hot words and thereafter the victim was assaulted by accused Hanif on exhortation of his father Shakoor. It is not a case of hit and run without any altercation. If there was exchange of hot words between the accused persons and the victim, it would have taken some time and then at the height of anger, injuries would have been inflicted and on the exchange of hot words every- body present in the nearby houses would have reached the place of occurrence, and exactly the same statements are of the witnesses as discussed above. It is true that if the occurrence took place inside the house, the witnesses could not have seen the occurrence, but it is not the case of the prosecution that the witnesses went inside the house of the victim and saw the occurrence. The case of the prosecution is that the occurrence took place in the Raasta as shown in the site plan. The case of the prosecution is that the occurrence took place in the Raasta as shown in the site plan. ( 25 ) WE are unable to appreciate the argument of the learned counsel that the occurrence took place inside the house of the victim, in view of this fact also that a specific suggestion was made to the informant in the last line of his statement in paragraph 6 that he was not present at the place of occurrence and that the victim was injured outside and then came inside the house. The exact words are, "yeh Kahna galat hai ki mai maukey per maujood nahin the aur voh bahar se jakhmi ho ker ander aaya ho aur mashwara karkey rapat likha kar muljimaan ko farzi namjad kiya hai. " Therefore, this argument does not stand that the occurrence took place inside the house. This argument was advanced for two-fold purposes. Firstly, if the occurrence took place inside the house, the witnesses had got no opportunity to see the occurrence. Secondly, the place of ocucrrence has been changed. Therefore, the whole structure of the prosecution case is demolished. Neither the occurrence took place inside the house nor the place of occurrence has been changed. All the witnesses are probable and natural witnesses. It cannot be said that they are chance witnesses. Although the house of PW-1, Babhan has not been shown in the site plan, but it is said to be just near the house of PW-3, Farzand whose house has been shown in the site plan. PW-2 Shabbir had come to the house of his sister. Naturally, one must come to his relation on the event of festival. It was not suggested that his sister had not been wedded there. It was argued that when the witness had come to fetch his sister why he had not taken his sister to his place. The simple reply is that when such an occurrence had taken place in the Mohalla, no person would dare to move out in the said night. ( 26 ) IT was argued by the learned counsel for the appellants that this was case of hit and run, as the occurrence took place within a few seconds. The simple reply is that when such an occurrence had taken place in the Mohalla, no person would dare to move out in the said night. ( 26 ) IT was argued by the learned counsel for the appellants that this was case of hit and run, as the occurrence took place within a few seconds. It is true that the actual assault took place within a few seconds but the prosecution case is that Abdul Khaliq came to the house of Shakoor to make a protest. He lodged the protest then there was exchange of hot words between them and then Shakoor caught hold of Abdul Khaliq and upon exhortation his son Hanif assaulted the victim with the knife. All these circumstances if taken together will show that this was not a case of hit and run without any voice, but it took some time and there was deliberate attack on the victim after exchange of hot words. ( 27 ) THE ocular testimony of the witnesses is fully corroborated by the medical evidence. The injuries are said to have been caused by knife. So is the statement of the Doctor. The Doctor also specifically stated that the injuries were possible to have been caused at about 8 p. m. and these injuries were sufficient in the ordinary course of nature to cause death. Looking to the length, breadth and deepness of the injuries, it is clear that the assault was made with full force so as to kill the victim. There is nothing to disbelieve either the statements of the eye-witnesses or that of the Doctor. ( 28 ) THERE is recovery of the knife under Section 27 of the Evidence Act, on the statements of the accused persons. This recover is not of very much importance, as the knife had not been sent for chemical exemination. But it is specifically proved that these are the accused persons who caused injuries to the victim on 14-11-1978 at 8. 00 p. m. ( 29 ) WE have gone through the judgment recorded by the learned Sessions Judge and we have nothing to differ from the findings. He has fully appreciated the arguments of the parties and has come to the definite opinion that these are two accused persons who in furtherance of their common intention assaulted the victim and caused his death. He has fully appreciated the arguments of the parties and has come to the definite opinion that these are two accused persons who in furtherance of their common intention assaulted the victim and caused his death. ( 30 ) THE assault was deliberate one with full knowledge and intention to kill the victim. The learned Sessions Judge has rightly convicted and sentenced the appellants to life imprisonment. There is nothing for which the judgment, findings, conviction and sentence may be interfered with. ( 31 ) IN the result, this appeal merits dismissal and is accordingly dismissed. The appellants shall be taken into custody to serve out the sentence awarded by the learned Sessions Judge. Their bail bonds are cancelled and the sureties are discharged. The learned C. J. M. , Rampur shall report compliance to this Court within three months from the date of the receipt of a copy of this order. ( 32 ) OFFICE is directed to send a copy of this order of the C. J. M. , Rampur within a week. Appeal dismissed.