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Allahabad High Court · body

2004 DIGILAW 1139 (ALL)

Shakoor alias Dana, Azmatullah v. State

2004-05-26

IMTIYAZ MURTAZA, S.K.AGARWAL

body2004
IMTIYAZ MURTAZA, J. ( 1 ) THE present appeal has been filed against the judgment and order dated 7. 5. 1983 passed in s. T. No. 256 of 1982 by the Sessions Judge, Bijnor whereby the appellants Hasmat alias Kalu and Qayyaum alias Kamil were convicted under Section 148 I. P. C. and sentenced to rigorous imprisonment for one year and appellants Shakoor alias Danz, Zahoor, Akhtar, Sharafat, Zamir and Waheed were convicted under Section 147 I. P. C. and sentenced to rigorous imprisonment for six months. All the appellants were also convicted under Section 302/149 I. P. C. and sentenced to under go rigorous imprisonment for life. They were further convicted under Section 307/149 I. P. C. and sentenced to under go rigorous imprisonment for five years. All the sentences were to run concurrently. ( 2 ) THE brief facts of the case as mentioned in the F. I. R. are that on 26. 7. 1982 at about 6. 00 P. M. the complainant along with his brother Naseem, uncles Amir Ali and Sami were sitting in their baithak and were holding talks. In the mean time Shakoor alias Dana, Zahoor, Hashmat alias kalu, Akhtar, sharafat, Zamir, Waheed and Quayyaum alias Kamil came armed with Lahi, tabal, Ballam and gun. Qayyum alias Kamil and Hashmat alias Kalu were armed with gun and remaining appellants were armed with Lathi, Ballam and Tabal. As soon as they reached the baithak they started abusing. They stated that you had assaulted their children so they will teach them a lesson. They thereafter started assaulting them. On the exhortation of Shakoor, Hashmat alias Kalu and Qayyum alias Kamil had fired with their guns. Naseem and Sami had received fire arm injury. Sami died on the spot. His uncle Amir Ali had also suffered injuries. On hearing the alarm Natthu, Ali Hasan, Qayyum, Ibrahim, Shabbir and several other persons have reached there, witnessed the occurrence and saved them. It is further alleged that they had also used Lathi and Ballam in order to save themselves. The accused have also received injuries. The complainant had left the dead body and injured at the place of occurrence. He went to lodge the report along with Ishaq and Hamid. A case was registered at police station H aur at about 8. 30 p. M. on 26. 7. 1982. The accused have also received injuries. The complainant had left the dead body and injured at the place of occurrence. He went to lodge the report along with Ishaq and Hamid. A case was registered at police station H aur at about 8. 30 p. M. on 26. 7. 1982. ( 3 ) AFTER registration of the report P. W. 6 Tikam Singh Bhati Started the investigation. He prepared the inquest report, photo lash and Chalan Lash which are Exts. Ka-9 to Ka-11. The post mortem of Sami was conducted by P. W. 2 Dr. S. K. Kapoor on 27. 7. 1982 at about 12. 45 P. M. and had noted the following ante mortem injuries:1. Lacerated punctured wound. 5 cm x. 4 cm muscle deep on the right side face 3. 0 cm away and below the right angel of mouth. 2. Lacerated wound 1. 0 cm x. 4 cm x muscle deep on the left side of neck, 5. 0 cm below the left pinna of ear. On exposer, one pellet recovered from the muscle of neck. 3. Lacerated rounded wound. 4 cm x. 4 cm on the left cheek 3. 0 cm horizontally away from the left angle of mouth. Wound is muscle deep. ( 4 ) LACERATED wound. 4 cm x. 3 cm muscle deep, on the left upper arm, 6. 0 cm above the left elbow on front surface. ( 5 ) LACERATED wound. 5 cm x. 3 cm on the outer side of left forearm, skin deep, 4. 0 cm below the left elbow. ( 6 ) LACERATED wound. 5 cm x. 4 cm x muscle deep over the upper border of left clavicle on the front of left shoulder. ( 7 ) THREE lacerated punctured wound each measuring. 4 cm x. 4 cm x muscle deep,. 6 cm x. 4 cm x muscle deep and. 5 cm x. 4 cm x muscle deep respectively on the front of right shoulder and outer side. On exposing the above three wounds, one pellet recovered from the muscle. ( 8 ) LACERATED wound. 8 cm x. 4 cm skin deep on the front of right upper arm 6. 0 cm above the right elbow joint. ( 9 ) MULTIPLE leacerated and punctured wounds on the both sides front of chest, one between the 2nd and 3rd. On exposing the above three wounds, one pellet recovered from the muscle. ( 8 ) LACERATED wound. 8 cm x. 4 cm skin deep on the front of right upper arm 6. 0 cm above the right elbow joint. ( 9 ) MULTIPLE leacerated and punctured wounds on the both sides front of chest, one between the 2nd and 3rd. Left intercostal space, two adjacent to the left border of sternum in upper 1/3 region, one on the 5th left intercostal space, two on the right border of sternum, one in the region on 7th intercostal space and one on the right fourth intercostals space. Total eight in number. On exposing the chest, clotted blood present under lying the inter costal muscle. On further exposing, both side pleura found punctured under lying the wound and lacerated the anterior surface of both lung. One pellet recovered from left chest cavity. Two pellets recovered from right chest cavity. Both sides of chest cavity filled with clotted blood. Weight 1 1/2 lb. ( 10 ) LACERATED punctured wound. 5 cm x. 4 cm x abdominal cavity deep on the left iliac fossa. 3. 5 cm medial to the left anteric superior iliac spine. On exposing, adbomen cavity peritoneum and left descending colan found punctured, clotted blood present in left descending colan and abdominal cavity Weight 1/2 lb. One pellet recovered from the abdominal cavity. 4. In the opinion of doctor cause of death is shock and haemorrhage as a result of ante-mortem injury. 5. P. W. 3 Dr. Sri Kant Rastogi had medically examined Amir Ali on 27. 7. 1982 at 1. 55 A. M. and he noted the following injury:-Penetrated wound 1 cm x 3 mm x 1 cm deep present over right side head, triangular in shape, edges are clean cut 6. 5 cm from right ear at 12 Oclock position, bleeding present on touch. 6. In the opinion of doctor the injury was simple, caused by sharp edged object duration about 1/2 to one day old. 7. He has also examined Nassem Ahmad on 27. 7. 1982 at 1. 15 A. M. and found following injury:1. Gun shot wound (entry) single 3 mm x 3 mm x 0. 5 cm deep rounded present over middle of right Eye brow. 3. 5 cm on (RT) side from bridge of nose, no tattooing present. Clotted blood present. 2. 7. He has also examined Nassem Ahmad on 27. 7. 1982 at 1. 15 A. M. and found following injury:1. Gun shot wound (entry) single 3 mm x 3 mm x 0. 5 cm deep rounded present over middle of right Eye brow. 3. 5 cm on (RT) side from bridge of nose, no tattooing present. Clotted blood present. 2. G. S. W. (entry) 3 mm x 3 mm rounded over front of right side chest 4. 0 cm from (RT) nipple at 4 Oclock position. No tattooing, Clotted blood present. 3. G. S. W. (entry) Three wounds 3 mm x 3 mm x 0. 5 deep present middle, front and outer side of left arm, rounded in area 9 cm x 4. 5 cm, 11 cm above left elbow joint. No tattooing present. Clotted blood present. 8. In the X-ray examination report rounded radiopaque shadows of metallic density of dia about 3 mm seen in the right orbital region, right lower chest and left upper arm bone were normal. 9. He has also examined accused Hashmat alias Kalu on 26. 7. 1982 at about 8. 30 P. M. and found the following injuries on his person: 1. Punctured wound, Triangular in shape. 8 cm x. 5 cm on the left side chest 8 cm below and outside to the left nipple and 9. 0 cm below the anterior fold of left exilla, fresh bleeding present. The wound bone deep on probing the further depth it is kept u. o and avd. X-ray. 2. Punctured wound quadrangular in shape, 1. 0 cm x. 5 cm x chest cavity deep on the left side of chest 5. 0 cm horizontally away from the left nipple and surgical emphysema present with fresh bleeding. Ad. X-ray chest and referred to surgeon for actual depth. 3. Incised wound 1. 3 cm x. 4 cm x muscle deep on the front of left shoulder 4. 0 cm below the left acromliclavacular joint fresh bleeding present. 4. Contusion 4. 0 cm x 1. 5 cm oblique on the outer side of right elbow. 5. Abrasion 1 cm x. 5 cm, 10 cm below the left proximal inter phalangeal joint of left middle finger. According to the opinion of doctor all the injuries were fresh. 10. 0 cm below the left acromliclavacular joint fresh bleeding present. 4. Contusion 4. 0 cm x 1. 5 cm oblique on the outer side of right elbow. 5. Abrasion 1 cm x. 5 cm, 10 cm below the left proximal inter phalangeal joint of left middle finger. According to the opinion of doctor all the injuries were fresh. 10. After the conclusion of the investigation charge sheet was submitted against the appellants and the case was committed to the court of Sessions. ( 11 ) THE prosecution had relied upon six witnesses. P. W. 1 Akram Ali (informant), P. W. 4 naseem Ahmad, P. W. 5 Amir Ali are eye witnesses. P. W. 2 Dr. S. K. Kapoor had conducted the post mortem examination of the deceased. P. W. 3 Dr. S. K. Rastogi had examined the injured amir Ali and Naseem Ahmad. P. W. 6 Tikam Singh Bhati is the Investigating Officer. ( 12 ) P. W. 1 Akram Ali is the complainant of the case. He has stated that accused persons are resident of his village. They had committed the murder of his uncle and caused injuries to nasseem Ahmad and Amir Ali. Hasmat alias Kalu, Qayyum alias Kamil were armed with gun, waheed, Zamir and Sharafat were armed with Tabal. Shakoor alias Dana, Zahoor and Akhtar were armed with Lathi. It is further stated that on 26. 7. 1982 due to previous dispute accused persons came at his baithak. At that time he, Naseem Ahmad, Amir Ali and others were present there. They came and started abusing them and told them that they had assaulted their children, now they will teach them a lesson. The accused persons started assaulting them. He peeked up a lathi in his hand. Amir Ali had snatched the Ballam of Waheed. Hshmat alias Kalu received injury. The accused had retreated thereon. Shakoor alias Dana exhorted. Hashmat alias Kalu and qayyum alias Kamil then fired from their guns. After receiving the injuries Sami died on the spot. Waheed had given Ballam blow to Amir Ali and Amir Ali had snatched the Ballam of waheed. Natthu, Qayyum, Ibrahim and Shabbir reached there after hearing the alarm. He had written the F. I. R. in the baithak and went to police station Haldaur to lodge it. The F. I. R. is Ext. Ka-1. Waheed had given Ballam blow to Amir Ali and Amir Ali had snatched the Ballam of waheed. Natthu, Qayyum, Ibrahim and Shabbir reached there after hearing the alarm. He had written the F. I. R. in the baithak and went to police station Haldaur to lodge it. The F. I. R. is Ext. Ka-1. It is further stated that accused assaulted them with Lathi, Tabal and Ballam also. In the cross examination he stated that Sami, Naseem Ahmad did not receive any lathi, tabal and ballam injury because they were infront of them. All the blows were directed against him. Amir ali had not received any lathi, tabal blow. In the F. I. R. he did not mention that accused had not received any lathi, tabal blow. In the F. I. R. he did not mention that accused had not received any lathi, tabal blow. In the F. I. R. he did not mention that accused have retreated on seeing the witnesses coming. He did not also disclosed this to the Investigating Officer. He did not mention about his injuries in the F. I. R. nor he was sent for any medical examination. He received only simple injury on his buttocks. He did receive any visible injury and due to this it was not mentioned in the report nor got himself medically examined. The accused had also assaulted with lathi and Ballam after firing was over but no other person had received any fire arm injury. He stated that he did not mention in the report that Amir Ali had snatched the Ballam of Waheed nor he disclosed it to the Investigating Officer. He had told the Investigating Officer that he had used lathi in his defence. He could not tell the reason as to why it is not so written by the investigating Officer in his 16 Cr. P. C. statement. The blood came out from the wounds of Amir ali, Naseem Ahmad and Sami but he could not see whether it had fallen on the ground or not. He did not see any bullet and tickly on the spot. The Investigating Officer had reached the spot at 10. 30 P. M. in the night of occurrence but he recorded his statement on the next date. ( 13 ) P. W. 4 naseem Ahmad is nephew of deceased Sami. He did not see any bullet and tickly on the spot. The Investigating Officer had reached the spot at 10. 30 P. M. in the night of occurrence but he recorded his statement on the next date. ( 13 ) P. W. 4 naseem Ahmad is nephew of deceased Sami. He stated that the accused had committed the murder of his uncle Sami and caused injuries to him and Amir Ali. Shakoor alias dana, Zahoor and Akhtar were armed with lathi. Zamir and Sharafat were armed with Tabal, waheed was armed with a Ballam. Hashmat alias Kalu and Qayyum alias Kamil were armed with guns. The accused suddenly reached the Baithak where he along with Amir Ali, Akram Ali and Sami were already present. The accused started abusing them and launched the assault. Akram peeked up a lathi and Amir Ali snatched the Ballam of Waheed and used it against the accused persons. Hashmat alias Kalu received injuries. The accused persons then retreated to 15 to 20 steps and on the exhortation of Shakoor alias Dana, Qayyum alias Kamil and Hashmat alias kalu opened fire which hit him and Sami who died on the spot. He and Amir Ali had also received injuries. Natthu, Shabbir, Qayyum and Ibrahim also arrived there. Injured were medically examined. In the cross-examination he admitted that the accused persons had retreated after receiving injuries. Before their retreat they were assaulting him, Amir Ali, Akram and sami. He had received lathi injures. Amir Ali had received Ballam injuries and he had not received injury from Tabal or Lathi, Akram had received lathi injury. Sami had not received tabal, Ballam or lathi injuries. Hetoo did not receive Tabal, Ballam or Lathi injuries. He had not disclosed it to the Investigation Officer that Akram had picked up a lathi which was lying there. He had also not disclosed to the Investigating Officer that Amir Ali snatched the Ballam for waheed. ( 14 ) P. W. 5 is Amir Ali. He had also supported the statement of the informant and P. W. 4 Naseem ahmad with regard to the occurrence. He had further stated that after he received injuries thereafter he had snatched the Ballam of Waheed. He used this Ballam which compelled the accused to reterat. On the exhortation of Shokaoor alias Dana accused Qayyum alias Kamil and hashmat alias Kalu had fired. He had further stated that after he received injuries thereafter he had snatched the Ballam of Waheed. He used this Ballam which compelled the accused to reterat. On the exhortation of Shokaoor alias Dana accused Qayyum alias Kamil and hashmat alias Kalu had fired. Sami and Naseem Ahmad suffered fire arm injures and Sami died on the sport as a consequence. He further stated that when accused had attacked them then he used Ballam which hit Hashmat alias Kalu but he could not tell that Hashmat alias Kalu had suffered his injury before the firing or subsequent to that. He had shown the Ballam to the investigating Officer but no recovery memo was prepared. He further stated that he had not told the Investigating Officer that the Ballam is of Waheed which he snatched from him and plied in self defence. ( 15 ) P. W. 6 is Investigating Officer. After registration of the case he came to the spot. He prepared the inquest and other relevant papers for the post mortem examination of the deceased. He had recorded the statements of Akram, Shabbir, Amir Ali and Natthu and prepared the site plan which is Ext. Ka-12. On 29. 7. 1982 he recorded the statement of Naseem Ahmad and submitted charge sheet against all these accused. In the cross-examination he sitated that on the place of occurrence he did not find any pellet, tickly or blood. On 29. 7. 1982 he heard that hashmat alias all these accused. In the cross-exmination he stated that on the place of occurrence he did not find any pellet, tickly or blood. On 29. 7. 1982 he heard that Hashmat alias Kalu had also received injuries in the said incident. He stated the witnesses had not discribed the weapons used by the accused in their statements made to him. ( 16 ) DEFENCE had denied the prosecution case. Hashmat alias Kalu claimed that he was in his baithak Mohd. Umar, Kamil, Ibrahim, Sami, Naseem and Amir case there armed with Ballam, barchi and lathis. Yasin, Buddhoo and Shaukar arrived on his side. Shauyat opened fire to save him. It caused injuries to Naseem and Sami. He too sustained injuries. He got himself medically examined. His report was not registered by the police. He made an application to Superintendent of Police. Shakoor claimed he contested Pradhans election against Akrams uncle. Mohd. Umar. Yasin, Buddhoo and Shaukar arrived on his side. Shauyat opened fire to save him. It caused injuries to Naseem and Sami. He too sustained injuries. He got himself medically examined. His report was not registered by the police. He made an application to Superintendent of Police. Shakoor claimed he contested Pradhans election against Akrams uncle. Mohd. Umar. Jamir is his nephew. He prosecuted Rajpal Singh, Omveer and Jasbeer constables for accepting bribe. Indefence they examined Shaukat. ( 17 ) D. W. 1 Shaukat had stated the Hashmat alias Kalu is his uncle. About nine months back at about 6 P. M. he was sitting in the Baithak with his uncle. Naseem Ahmad, Sami, Amir Ali, haneef, Mohd. Umar and Ibrahim came to the Baithak. Naseem Ahmad and Sami were armed with Barchhi. Amir Ali was armed with Ballam and rest of the accused were armed with Lathis. They stated Marpit with Hashmat alias Kalu. He took out his gun and fired which hit Naseem and Sami. The other accused took away Sami along with them. Hashmat alias Kalu had received barchhi injury. He was taken to Bijnor. He was medically examined there. His report was not written at the police station. ( 18 ) THE Sessions Judge after relying upon the prosecution case convicted the appellants as aforesaid. ( 19 ) WE have heard Sri P. N. Misra and Sri Raghuraj Kishore for the appellants and learned a. G. A. and Sri N. I. Zafri for the complainant. ( 20 ) THE appellants have challenged the findings of the Sessions Judge on the ground that the prosecution has failed to prove its case beyond reasonable doubt. The prosecution is suppressing the true genesis of the marpit and had not explained the injuries of the accused persons. The witnesses and not reliable because they are suppressing the genesis of the occurrence and evidence on record does not prove the case beyond reasonable doubt. No independent witness of the locality is examined by prosecution. ( 21 ) P. W. 1 Akram Ali stated that he had picked up the lathi and Amir Ali snatched spear from waheed accused. He specifically stated that when they had assaulted the accused they retreated after receiving injuries and thereafter the accused had fired. No independent witness of the locality is examined by prosecution. ( 21 ) P. W. 1 Akram Ali stated that he had picked up the lathi and Amir Ali snatched spear from waheed accused. He specifically stated that when they had assaulted the accused they retreated after receiving injuries and thereafter the accused had fired. The manner of assault as mentioned by this witness was not disclosed in the F. I. R. or in his statement under Section 161 Cr. P. C. to the Investigating Officer. The accused had assaulted them with Lathi, Tabal also but no one had received any Lathi or Tabal injury. The statement of this witness shows that accused had assaulted them with Lathi, Tabal and Ballam about 2 to 21/2 minutes, even then none of the person on the side of prosecution had received any Lathi or Tabal injury. In the F. I. R. he had not stated that he received any Lathi injury. He was also not medically examined. His statement clearly shows that he is suppressing the origin of the occurrence. His version is also not supported by the medical evidence on record. ( 22 ) P. W. 4 Naseem Ahmad stated that Akarm Ali had picked a Lathi which was already lying in the Baithak and Amir Ali had snatched Ballam from Waheed and they had used these weapons against the accused persons and Hashmat alia Kalu had received Ballam injury. He had further stated that when Amir Ali and Akram Ali had started using their weapons the accused had retreated about 15, 20 steps. Thereafter Hashmat alias Kalu and Qayyum alias Kamil had fired. He further stated that accused had retreated after receiving the injury and prior to retreat the accused had assaulted Amir Ali and Sami with their respective weapons for about 2, 3 minutes. He stated that he had received Lathi injury and Amir Ali had received Ballam injury but medical examination report shows tat he had not received any Tabal or Lathi injury. Akaram Ali had received Lathi injury. Sami had not received any Tabal, Ballam or Lathi injury. He further stated that he had not received Tabal, Ballam or Lathi injury. He had not stated before the Investigating officer that Akaram Ali had picked up a Lathi which was lying already there. He had also not disclosed this fact that Amir Ali snatched the Ballam from Waheed. Sami had not received any Tabal, Ballam or Lathi injury. He further stated that he had not received Tabal, Ballam or Lathi injury. He had not stated before the Investigating officer that Akaram Ali had picked up a Lathi which was lying already there. He had also not disclosed this fact that Amir Ali snatched the Ballam from Waheed. His statement is also similar to that of P. W. 1 Akram Ali. He is also trying to suppress the true origin of the occurrence. ( 23 ) P. W. 5 Amir Ali stated that when he received injuries he snatched the Ballam from Waheed and started plying the same against the accused. Thereafter on the exhortation of Shakoor alias dana, Qayyum alias Kalu and Hashmat alias Kalu have fired. He could not tell whether Hashmat alias Kalu had received any Ballam injury before retreating or thereafter. He stated that Ballam which he had snatched from Waheed was square in shape. The Investigating Officer had not prepared any recovery memo of the said Ballam. He is trying to explain the injuries of Hashmat alias Kallu. The medical examination report of Hashmat alias Kalu indicates that he had not received fire arm injuries. Injuries number 1 and 2 are punctured wound. Injury No. 1 was triangular in shape and injury No. 2 was quadrangular in shape. This clearly indicated that weapon used were of different type. The weapon used by P. W. 5 Amir Ali was square in shape. ( 24 ) SO far as the explanation of injuries of accused is concerned in the first information report it is mentioned that on the side of complainant lathi and ballam was used in their defence. The sessions Judge also accepted that the injuries of the accused are explained by the prosecution. A closer scrutiny of the statement of witnesses shows that the injuries on the side of accused are not properly explained. The nature of two penetrating wounds of Hashmat alias Kalu shows that they can be caused by two different weapons. The police had also not prepared any recovery memo of ballam used in the occurrence. P. W. 5 Amir Ali claimed that he had snatched the ballam from the hands of Waheed but it was not taken away by the accused. P. W. 5 Amir Ali failed to mention the crucial part that Hashmat Ali was assaulted by him. The police had also not prepared any recovery memo of ballam used in the occurrence. P. W. 5 Amir Ali claimed that he had snatched the ballam from the hands of Waheed but it was not taken away by the accused. P. W. 5 Amir Ali failed to mention the crucial part that Hashmat Ali was assaulted by him. He had not seen whether Hashmat Ali alias Kalu had received injury before retreating or thereafter. The role of firing is assigned to Hasmat Ali alias Kalu and it is highly improbable that after receiving such a serious injury on his vital part he will be in a position to use the gun. It is also difficult to believe that after the firing any one will be in a position to assault with ballam a person who is holding a gun. This is because of the reasons witnesses did not see when firing was made and they are suppressing the actual part of the occurrence. In our view the prosecution is suppressing the genesis of occurrence and the injuries on the side of accused are not fully explained. The actual place of occurrence is also highly doubtful. According to the prosecution case the incident took place in the baithaka of the informant. The Investigating Officer had not found any blood or pellet or tickly at his baithak. The story about the place of occurrence was subsequently modulated. The witnesses had stated that after the assault accused had retreated about 15 - 20 steps to explain the absence of any pellet etc. from their baithak. ( 25 ) P. W. 1 Akaram Ali had not stated before the Investigating Officer that Amir Ali had snatched the ballam of Weheed nor he had mentioned it in the report. P. W. 4 Naseem Ahmad had not stated before the Investigating Officer that Akram Ali had picked up the lathi nor he had told that Amir Ali had snatched ballam of Waheed. Thus on the material point all the witnesses are not coming with the true facts of the case and they are suppressing the genesis of the occurrence. A perusal of the statement of the witnesses does not indicate that accused persons were aggressor. There were three lathis and 3 ballams but injuries of the prosecution do not subscribe to participation of so many accused with these weapons. A perusal of the statement of the witnesses does not indicate that accused persons were aggressor. There were three lathis and 3 ballams but injuries of the prosecution do not subscribe to participation of so many accused with these weapons. We are of the opinion that the prosecution had failed to prove its case beyond all reasonable doubt. ( 26 ) IN the result the appeal is allowed. The order of conviction and sentence against the appellants are set aside. The appellants are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. . .