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Allahabad High Court · body

2004 DIGILAW 2557 (ALL)

Tashreef Ahmad, Zameer Ahmad v. State

2004-12-17

K.K.MISRA, M.C.JAIN

body2004
K. K. MISRA, J. ( 1 ) THIS criminal appeal has been preferred against the judgment and order dated 7. 9. 1981 passed by Shri Gauri Shankar Nath Tripathi, the then Ist Addl. Sessions Judge, Bijnor in Session Trial no. 530 of 1979 connected with session Trial No. 529 of 1979, convicting and sentencing the appellants Tashreef Ahmad and Sahvan Ali under Section 302/149 I. P. C. to life imprisonment. They were further convicted and sentenced to one years R. I. under Section 148 I. P. C. and to six months R. I. under Section 323/149 IPC. The rest of the appellants Munna, Badrudding alias achhan, Ismail, Ayub, Sajjan, Javed Alam, Achhan and Sabir were convicted and sentenced under Section 302/149 I. P. C. to life imprisonment, under Section 323/149 I. P. C. to 6 months rigorous imprisonment. All the sentences on all counts were directed to run concurrently. ( 2 ) THE prosecution version as contained in the F. I. R. was that litigation was going on between the complainant Ibne Hasan on one side and Achchan alias Munne, Sajjan etc. on the other. For compromising the matter, it was decided that a Panchayat be held at the Chaupal of the deceased sakir Hussain, Shabbar, Fareed Mistri son of Allahadiya, Tafsil Ahmad, Qamaruddin alias Bhole son of Aminuddin, Kalifuddin, alias Chunnu son of Azimuddin, Aminuddin alias Munne son of azimuddin and Raisul Hasan son of Faizal Hasan assembled from one side. From the other side, sabir Hasan son of Naza Hasan alias Chhote (who posted in Delhi in Police Department), tashreef Ahmand son of Jamir Ahmad, Sahavn Ali son of Mubarak Hasan, Javed Alam, Munna son of Nazir Hasan, Badludding alias Achchan son of Bundu, Ismial Ayub, Achchan son of avrarul Hasan and Sajjan were present in the Panchayat. A pertromax was glowing in the baithak. As the Panchayat started, the members from the side of Achchan asked to withdraw all the cases. In reply, the members from the side of the complainant also said to the accused party to withdraw the case and then only the matter would be settled. On their saying so, heated arguments took place between the parties. As the Panchayat started, the members from the side of Achchan asked to withdraw all the cases. In reply, the members from the side of the complainant also said to the accused party to withdraw the case and then only the matter would be settled. On their saying so, heated arguments took place between the parties. At that time, Tashreef went to the house of Sahvan situate in the vicinity and brough Lathies, Ballam and Tabal kept there from before and shouted aloud to teach a lesson to the complainant party in respect of the litigation pending in the court. The members of the accused side took the arms brought by Tashreef. At that time, at about 9. 10 o Clock in the night, the accused Sabir Hasan, Sahavn Ali, Javed Alam, Munna, Badluddin alias achchan, Ismail, Ayub, Achchan, Sajjan and Tashreef attacked the complainant party with lathies, Tabal etc. By their assault, some members of the complainant party received injuries and Sakir Hussain, the brother of the complainant fell down on the Chabutara sustaining injuries. Hearing the cries of the complainant party, Ghissu, Chunnu and other persons of the village came there. The accused persons fled away towards western side. Sakir Hussain died on the spot. Quamaruddin alias Bhole, Khalifuddin alias Chunnu, Aminuddin alias Munne and raisul Hasan also sustained injuries. ( 3 ) THE F. I. R. of the incident was lodged by Ibne Hasan, complainant at the Police Station nangal, situate at a distance of 4 miles from the place of incident at 2 A. M. on 1. 9. 1979. The investigation of the case was taken up by PW10 Devendra Singh Tyagi. He was present at the police station when the F. I. R. was lodged. He recorded the statements of complainant Ibne hasan and Chowkidar Aziz at the police station itself. He proceeded to the place of occurrence. He reached there at 4. 10 a. m. in the morning. He found the petromax on the spot, which was glowing. He prepared the site plan and recorded the statement of the witness Shabbir. The petromax was found by him in working order Blood stained and simple earth was also collected by him from the spot. He inspected the dead body of the deceased and instructed Sub-Inspector raghubir Singh to prepare Panchayatnama etc. The dead body was then sealed and sent for post mortem. The petromax was found by him in working order Blood stained and simple earth was also collected by him from the spot. He inspected the dead body of the deceased and instructed Sub-Inspector raghubir Singh to prepare Panchayatnama etc. The dead body was then sealed and sent for post mortem. ( 4 ) THE post mortem examination was conducted by PW 3 Dr. R. K. Nigam on 1. 9. 79 at 4. 45 P. M. He found that the deceased was aged about 30 years and a day had passed since he died. He found the following ante mortem injuries on the dead body of Shakir Hussain, deceased. 1. Lacerated wound 7 cm x 1 bone on the right side of head 11 cm above the right ear. On exposing, clotted blood was present in the scale and the underlying right parietal bone was fractured. The meninges and brain substance were lacerated and the clotted blood was present on them. The right middle cranial fossa was fractured. 2. Lacerated wound 3 cm x 1 1/2 cm x bone in the middle of occipital region of the head. On exposing, clotted blood was present on the meninges and brain substance. 3. Contusion 4 cm x 2 cm on the back of right elbow. 4. Contusion 3 cm x 3 cm on the back of left elbow. ( 5 ) CONTUSION 4 cm x 2 cm below the right eye. ( 6 ) CONTUSION 4 cm x 2- 1/2 cm on the right hip bone on lateral aspect 2 cm below iliace crest. ( 7 ) ABRASION 1 1/2 cm x 1 1/2 cm in the middle of back in lumbar region in middle. 5. The doctor opined that the death had occurred due to shock and haemorrhage. 6. PW 2 Dr. D. S. Chaudhary examined the injuries of Raisul Hasan, Qamaruddin @ Bhole, khalifuddin @ Chunnu and Aminuddin. The details are given below: raisul Hasan (examined on 1. 9. 1979 at 8 A. M.) 1. Lacerated wound 2" X 1/12" on head front right side, 3" from right eyebrow. 2. Swelling 3" X 1" on right thigh lateral side 10 above from right knee. The doctor was of the opinion that both the injuries were simple and caused by blunt weapon. Qamaruddin @ Bhole (examined on 1. 9. 1979 at 8. Lacerated wound 2" X 1/12" on head front right side, 3" from right eyebrow. 2. Swelling 3" X 1" on right thigh lateral side 10 above from right knee. The doctor was of the opinion that both the injuries were simple and caused by blunt weapon. Qamaruddin @ Bhole (examined on 1. 9. 1979 at 8. 10 A. M.)1 Lacerated wound 3/4" x 1/2" on head left side, 4" above from left ear (upper part ). 2 Swelling on right forearm frontally upto elbow joint 5 1/2" x 3/4". 3 Swelling 2" x 3/4" on right wrist joint upto the base of right thumb. 4 Swelling 3" x 1" on left thumb. 5 Swelling 4" x 1" on front of left thing, 9" above from left knee joint. 6 Swelling 4" x 1" on right knee. 7 Swelling 4" x 1" on front of right thigh, 4" above from right knee. All injuries were simple and caused by blunt object. Khalifuddin @ Chunnu (examined on 1. 9. 1979 at 8. 20 A. M.)1 Lacerated wound 3/4" x 2/12" on forehead, 2" above from left eyebrow. 2 Lacerated wound 3/4" x 1/2" on left laterally, 5" above from left ear. 3 Lacerated wound 1" x 1/2" on head centrally, 4" above from right eyebrow. 4 Abrasion 3" x 1/2" on upper arm, 6" below from right shoulder. 5 Abrasion 1 1/2" x 1/2" on front of right elbow joint. 6 Abrasion 1 1/2" x 1/2" on front of right elbow joint. 7 Lacerated wound 1" x 1/2" on right thumb. The doctor was of the opinion that all injuries were simple and caused by blunt weapon. Aminuddin (examined on 1. 9. 1979 at 8. 30 A. M.)1. Lacerated wound 2" x 1/2" on head left laterally, 3" above from left ear. 2. Swelling 2" x 1" on left thumb. Both the injuries were simple and caused by blunt weapon. 7. The accused appellants in their statements recorded under Section 313 Cr. P. C. , denied the prosecution story and further sated that they had been falsely implicated in the case. However, the factum of enmity and litigation between the parties was admitted. ( 8 ) IN support of its case, the prosecution examined eleven witnesses in all. PW 1 Khalifuddin alias Chunnu was one of the injured. Other eyewitnesses were PW6 Ibne Hasan complainant, pw 5 Ghissu and PW 7 Qamaruddin. However, the factum of enmity and litigation between the parties was admitted. ( 8 ) IN support of its case, the prosecution examined eleven witnesses in all. PW 1 Khalifuddin alias Chunnu was one of the injured. Other eyewitnesses were PW6 Ibne Hasan complainant, pw 5 Ghissu and PW 7 Qamaruddin. He, too, was injured. PW 2 Dr. D. S. Chaudhary, Medical officer, Incharge Nangal Dispensary, Bijnor examined and injuries of all the injured. PW 3 Dr. R. K. Nigam conducted the post mortem of the deceased. All other witnesses produced at the trial were formal in nature. ( 9 ) THE trial court found the case set up against the accused appellants to be truthful and convicted and sentenced them as above. ( 10 ) BROAD features of the evidence may be noted for proper appreciation. ( 11 ) PW 1, Khalifuddin deposed that before the incident, criminal cases were pending between the complainant party and the accused persons. A Panchayat was decided to be held at the chaupal of Sakir Hussain for compromising the matters. He, Aminuddin, Qamaruddin @ Bhole, ibne Hasan, Raisul Hasan, Shakir Hussain, Sabbar, Fareed Mistri and Tafsil were present there. From the other side. Sabbar, Ali, Javed, Achachan, Tashreef Ahmad, Munna, Sabir Husain, jamaluddin @ Sajjan, Badluddin @ Achchan, Ismail and Ayub were present. A petromax was glowing. Sahvan and Badaluddin @ Achchan asked them to withdraw the cases pending in the court. He and others from his side then told them to do likewise. The altercation turned in heated arguments. Then, Master Tashreff Ahmad went to the house of Sahvan Ali situate in the vicinity and brought Lathis, Ballams Tobal etc. and exhorted his companions to teach them lesson of litigation. Sahvan Ali took up the Tabal and other accused took Lathis. Tashreef Ahmad had ballam in his hand. Seeing the accused armed with weapons they started crying. The accused rounded them and prevented them from escaping. He saw that Sahvan Ali gave a blow of Tabal from reverse side on the head of the Sakir Ali, deceased. Sakir Hussain also sustained a Lathi blow on his head. He also sustained injuries on hands and legs. He fell down on the ground. Tashreef Ahamand attacked Ibne Hasan with Ballam. But, Ibne Hasan caught hold of the ballam. When Sakir Hussain fell on the ground, Tashreef Ahmad fled taking Ballam. Sakir Hussain also sustained a Lathi blow on his head. He also sustained injuries on hands and legs. He fell down on the ground. Tashreef Ahamand attacked Ibne Hasan with Ballam. But, Ibne Hasan caught hold of the ballam. When Sakir Hussain fell on the ground, Tashreef Ahmad fled taking Ballam. He further deposed that the Panchayat had gone smoothly for about 15-20 minutes. Other accused assaulted him, Aminuddin, Qamarudding @ Bhole and Raisul Hasan. Ghissu, Chunnu and many other had arrived at the spot and challenged th eaccused. Then the accused persons fled towards the west. He denied the suggestion that petromax was not glowing at the time of the incident. He specifically deposed that Sahavan Ali attacked Sakir Hussain on his head from reverse side of tabal. ( 12 ) PW 5 Ghissu deposed that it was about 9. 10 p. m. when he was returning after easing himself. He heard the cries coming from the Chaupal of Sakir. He ran towards the Chaupal. The petromax was glowing at the Chaupal of Sakir. A bulb was glowing on the mosque and it was moonlit night. So explaining his presence, this witness has supported PW1 Khalifudding in material particulars by his testimony. ( 13 ) PW 6 Ibne Hasan is the complainant and brother of the deceased. He deposed that there were two factions in the village, one of the accused persons and the other of the complainant party. Criminal cases were pending between both the factions and to settle the mater, the members of the both parties were sitting on the Chupal of Sakir. The discussion for compromising the matter was going on. He substantially repeated the story as given in the F. I. R. and in the deposition of pw 1 Khalifuddin. He deposed that Tashreef gave him a Ballam blow but he caught the Ballam. He further deposed that Sahvan assaulted Sakir Hussain with Tabal from the reverse side and the other accused made assault with Lathis. ( 14 ) PW 7 Qamaruddin is also an injured and he supported the version as given by the other eyewitnesses. ( 15 ) WE should also observe here that by order dated 8. 7. 04, the appeal of appellants No. 5, 7, 8 and 9, namely, Badruddin alias Achchan, Ayub, Ismail and Achchan, son of Abrarul Hasan abated because of their death. ( 15 ) WE should also observe here that by order dated 8. 7. 04, the appeal of appellants No. 5, 7, 8 and 9, namely, Badruddin alias Achchan, Ayub, Ismail and Achchan, son of Abrarul Hasan abated because of their death. ( 16 ) WE have heard Sri P. N. Misra, counsel for the appellants assisted by Sri S. A. Shah and Sri i. M. Khan and Sri S. S. Yadav, learned A. G. A. for the State. ( 17 ) THE first contention of the learned counsel for the appellants is that the trial court committed gross illegality in convicting the appellants with the aid of Section 149 IPC. He submits that an accused can be held guilty under Section 149 IPC only if an offence is committed by a member of 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. In support of his contention, learned counsel for the appellants relied upon the cases of Puran v. State of Rajasthan (1975 ACC 334) and Mariadasan and Ors. v. State of Tamil Nadu (1980 s. C. Cr. R. 178 ). In the case of Puran (Supra), it was held that in case of sudden mutual fight, aid of Section 149 IPC cannot be convicted only for the injuries caused by the individual acts attributed to them. Similarly, in the case of Mariadasan and Ors. (Supra), it was held that when the fight started suddenly on spur of moment in a heat of passion, accused could only be held liable for individual acts committed by them. ( 18 ) IN the case in hand, it has come in the evidence of all the eyewitnesses that a Panchayat in a peaceful atmosphere was being held for compromising the matters between the parties. The conversation turned into heated arguments and Master Tashreef Ahmad went to the house of sahvan Ali situate in the vicinity and brought Lathis, Ballam, Tabal etc. and exhorted his companions to teach them lesson of litigation. Upon this, the accused persons assaulted the complainant party with Lathis, Ballam and Tabal. It is not in dispute that criminal cases were being fought between the parties and for compromising the matter, a Panchayat was decided to be held. and exhorted his companions to teach them lesson of litigation. Upon this, the accused persons assaulted the complainant party with Lathis, Ballam and Tabal. It is not in dispute that criminal cases were being fought between the parties and for compromising the matter, a Panchayat was decided to be held. PW 1 Khalifuddin admitted in his deposition before the court that the Panchayat continued smoothly for 15-20 minutes and thereafter heated arguments took place between the parties and the incident occurred as alleged above. From the above, it cannot be inferred that the accused formed an unlawful assembly. Criminal cases were being fought between the parties and they assembled in the Baithak of Sakir Hussain to find out a peaceful solution of the dispute. The existence of an unlawful assembly is a necessary ingredient of the offence under this section. Where the existence of such assembly is not proved and the accused is not a member of the unlawful assembly at the time of the commission of the offence, he cannot be convicted under this section. We agree that the offence was not committed in prosecution of any common object of the unlawful assembly. Therefore, the accused persons cannot be held guilty with the aid of section 149 and each one would be liable for his separate act (s) only. We hold that the trial court committed error in convicting the accused persons with the aid of Section 149 IPC. Therefore, we have to decide the culpability of each accused separately. ( 19 ) LEARNED counsel for the appellants then submitted that the Sahvan Ali gave a Tabal blow to sakir Hussain from reverse side and, therefore, an intention to cause death cannot be imputed to him. Sakir Hussain also received injuries in his hands, legs etc caused by other accused by lathis. He submits that accused Sahvan Ali could at most be convicted under Section 304 Part II ipc. We find force in the submission of the learned counsel for the appellants. It has come on record that Sahvan Ali gave only a Tabal blow to Sakir Hussain from reverse side. Looking to the evidence and circumstances of the case, we find that it would be in legal frame to convict the accused Sahvan Ali under Section 304 Part II IPC and to sentence him thereunder. It has come on record that Sahvan Ali gave only a Tabal blow to Sakir Hussain from reverse side. Looking to the evidence and circumstances of the case, we find that it would be in legal frame to convict the accused Sahvan Ali under Section 304 Part II IPC and to sentence him thereunder. ( 20 ) SO far as the appellant Tashreef Ahmad is concerned, he was the prime actor. During the course of deliberations in the Panchayat, after heated arguments took place between the parties, he hurriedly went to the house of Sahvan situate nearby and instantaneously returned with Lathis ballam and Tabal. He himself plied Ballam targeting Inbe Hasan, though he could not succeed because of the Ballam having been caught by the intended victim. It was the Tabal brought by him which Sahvan took and where with he assaulted the deceased Sakir Hussain. It was also this accused Tashreef Ahmad who had exhorted the other accused and had given a call to teach those on the prosecution side a lesson. Considering all the attending circumstances, it is obvious that he and Sahvan Ali (who gave fatal blow to the deceased Sakir Hussain with Tabal) shared common intention to do the act, i. e. , of striking Sakir Hussain with Tabal with such knowledge that it was likely to cause death but without any intention to cause death. Such common intention between the two developed at the spur of moment when he brought the arms from the house of sahvan Ali and the latter, using the Tabal brought by the former, gave the blow to Sakir Hussain from the reverse side which caused the fatal damage on the head of the victim. Such common intention between the two developed at the spur of moment when he brought the arms from the house of sahvan Ali and the latter, using the Tabal brought by the former, gave the blow to Sakir Hussain from the reverse side which caused the fatal damage on the head of the victim. Tashreef Ahamad is, therefore, guilty of the offence punishable under Section 304 Part Two read with Section 34 i. P. C. ( 21 ) WE should make it clear that as held by the Supreme Court in the case of Amar Singh v. State of Haryana, AIR 1973 SC 2221 , an accused may be convicted with the aid of Section 34 I. P. C. , though charged with the aid of Section 149 I. P. C. when the facts proved and the evidence adduced would have been the same if he had been charged with the aid of Section 34 I. P. C. ( 22 ) SO far as the remaining appellants Javed Alam, Munna, Sajjan and Sabir are concerned, they only wielded Lathis causing injuries to the deceased as well as to Raisul Hasan, Qamaruddin, khalifuddin and Aminuddin. The injuries of all of them were found simple caused by any blunt weapon. Therefore, they would be convicted under Section 323 I. P. C. ( 23 ) IN the result, we allow the appeal partly in the following manner: accused Badruddin alias Achhan, Ayub, Ismail and Achhan son of Abrarul Hasan have died and as such the appeal has abated respecting them. ( 24 ) THE conviction of the accused appellant Sahvan Ali is converted to Section 304 Part two i. P. C. and he is sentenced to undergo rigorous imprisonment for seven years. The conviction of the accused appellant Tashreef Ahmad is also converted to Section 304 Part two I. P. C. read with section 34 I. P. C. He is also sentenced to rigorous imprisonment for seven years. ( 25 ) THE conviction of the remaining four accused appellants, namely, Javed Alam, Munna Sajjan and Sabir is converted to Section 323 I. P. C. Each of them shall undergo rigorous imprisonment for three months. ( 26 ) THE accused appellants Sahvan Ali, Tashreef Ahmad, Javad Alam, Munna, Sajjan and Sabir are on bail. ( 25 ) THE conviction of the remaining four accused appellants, namely, Javed Alam, Munna Sajjan and Sabir is converted to Section 323 I. P. C. Each of them shall undergo rigorous imprisonment for three months. ( 26 ) THE accused appellants Sahvan Ali, Tashreef Ahmad, Javad Alam, Munna, Sajjan and Sabir are on bail. Chief Judicial magistrate, Bijnor shall cause them to be arrested and lodged in jail to serve out the respective sentenced passed against them. ( 27 ) JUDGMENT be certified to the court below for reporting compliance within two months. . .