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Allahabad High Court · body

2016 DIGILAW 4072 (ALL)

Hifazul v. State of U. P.

2016-12-17

RAMESH SINHA, REKHA DIXIT

body2016
JUDGMENT : Ramesh Sinha, J. 1. The present criminal appeal has been filed by the appellant no. 1 Hifzul Hasan son of Mehandi Hasan against the judgment and order dated 23.2.1983 passed in S.T. No. 318 of 1982 (State Vs. Hifzul and others) by Additional Sessions Judge, Budaun by which he has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life. 2. The appeal preferred by the appellant no. 2 Mehandi Hasan son of Mian Jan has been ordered to be abated by this Court vide order dated 11.12.2015 as he died during the pendency of the appeal. 3. The prosecution story in brief is that the deceased Barkat Ullah had a Rahat in the village from which accused Hifzul had irrigated his land. Barakat Ullah demanded payment for irrigation from Hifzul but the same was not given by him on account of which there were exchange of hot words between them. On 28.3.1982 at about 6:00 p.m. when Barkat Ullah was coming from Har to the village Thalia Nagla and reached near Chaupal of Shafi, the accused Hifzul armed with gun, accused Mehandi Hasan armed with country made pistol and Nahar Hasan armed with knife, who were present near the Chaupal surrounded Barkat Ullah. On the alarm raised by Barkat Ullah, his brother Abdul Wahid ran to the spot. Witnesses Mithu and Shakoor Ahmad also reached there on the alarm raised by him. Accused Nahar Hasan assaulted the deceased Barkat Ullah by Knife and Hifzul Hasan and Mehandi Hasan fired at Barkat Ullah with their respective fire arms, who received injuries of fire arm. It is further stated by the informant that Hifzul and Mehandi Hasan fired two shots each which hit Barkat Ullah, who fell down and died on the spot. Thereafter, the accused manage their escape good from the place of occurrence. The F.I.R. of the incident was lodged by brother of the deceased Abdul Wahid, who got the same written by one Basi Ahmad of Village Thalia Nagla on the same day at 19.15 hours at police station Musajhag which is at a distance of about 2 Km. away from the place of occurrence. 4. The chick report was written by P.W. 4 Girja Shankar, Head Constable of police station Musajhag. away from the place of occurrence. 4. The chick report was written by P.W. 4 Girja Shankar, Head Constable of police station Musajhag. The Investigation of the case was started by Sub-Inspector Sitaram Gangwar, who record the statement of Abdul Wahid and also made search at the houses of the accused but they could not be arrested. The inquest of the deceased was conducted and inquest report was prepared by him as Ext. Ka-6. The dead body of the deceased was sealed and sent for post mortem examination. He took three empty cartridges in his custody and prepared its recovery memo as Ext.Ka-4. He further took blood stained and plain earth of the spot on 29.3.1982 and prepared its recovery memo as Ext. Ka-5. Thereafter, the investigation was taken over by Sri Muin Uddin, S.O., who recorded the statement of eye witnesses, Mithu and Shakoor. He went on the spot and prepared the site plan as Ext. Ka-7. Further he recorded the statement of the witnesses of inquest report and the recovery memo. The statement of accused was recorded by him on 7.4.1982 in jail. 5. The post mortem examination of deceased Barkat Ullah was conducted by Dr. O.P. Champa on 29.3.1982 at 3.20 p.m., who found following ante mortem injuries on the person of the deceased:- (i) Gun shot wound of entry 3 cm x 3 cm on left side jaw, 4 cm below and anterior to left ear lobula. Margins inverted and irregular blackening and charring present. Left maxila and mandible fractured below wound direction midially and posteriorly. (ii) Gun shot wound of exit 9 cm x 4 cm on the upper part of mouth. Margins are everted and irregular. Upper lip, lower half of nose. Right side upper jaw with teeth absent. Tounge ruptured at places. (iii) Gun shot wound of entry 2 cm x 2 cm on right side back of abdomen 12 cm above iliac crust on scapular line margin inverted blackening and charring present. Direction of wound is upper ward and forward towards chest right lobe of liver ruptured. Diaphagm ruptured and right lung ruptured. (iv) Gun shot wound of exit 4 cm x 4 cm on right side of chest 1 cm below right nipple at 3 O'clock position margins are everted and lacerated 4th, 5th and 6th rib fractured below wound right side cavity about 50 cc blood present. Diaphagm ruptured and right lung ruptured. (iv) Gun shot wound of exit 4 cm x 4 cm on right side of chest 1 cm below right nipple at 3 O'clock position margins are everted and lacerated 4th, 5th and 6th rib fractured below wound right side cavity about 50 cc blood present. (v) Gun shot wound of entry 2 cm x 2 cm on lateral aspect of left side abdomen 4 cm above iliac crust. Margins are inverted blackening and charring present. Direction forward and downward. (vi) Gun shot wound of exit 4 cm x 4 cm on right iliac 5 cm above root of penis at 2 O'clock position margins are everted. Loop of intestine coming out from wound. Intestines ruptured at places about 50 cc blood present in abdomen cavity and two pellets removed. (vii) Gun shot abrasion 3 cm x 4 cm on anterior lateral aspect of left upper arm at mid, blackening present. (viii) Abrasion 4 cm x 2 cm on left aspect of right knee joint. 6. In the opinion of the doctor death was caused due to shock and hemorrhage as a result of ante mortem injuries and duration of death was opined by him to be one day old. The charge sheet was submitted against all the three accused persons by the Investigating Officer under Section 302 I.P.C. 7. The learned Magistrate committed the case to the court of Sessions and the accused were charged under Section 302 I.P.C. by the trial court. 8. The prosecution in support of its case has examined P.W. 1 Abdul Wahid, the brother of the deceased, P.W. 2 Mithu and P.W. 3 Shakoor, who are the eye witnesses of occurrence and are resident of village Thalia Nagla where the incident took place. P.W. 4, Head Constable, Girja Shanker, who had written Chick report and copied the same in G.D., P.W. 5, Sub Inspector Sitaram Gangwar, the first Investigating Officer and P.W. 6, Sub Inspector Muin Uddin, who was the second Investigating Officer and concluded the investigation and submitted charge sheet against accused, P.W. 7 Dr. O.P. Champa, Medical Officer T.B. Clinic Budaun. 9. The statement of accused persons under Section 313 Cr.P.C. were recorded by the trial court in which they have stated that they have been falsely implicated in the present case due to village party bandi as election was to be held in the village. O.P. Champa, Medical Officer T.B. Clinic Budaun. 9. The statement of accused persons under Section 313 Cr.P.C. were recorded by the trial court in which they have stated that they have been falsely implicated in the present case due to village party bandi as election was to be held in the village. The deceased Barkat Ullah was a man of criminal antecedents and he had many enemies and it appears that some unknown miscreants killed him in the night. The accused Nahar Hassan has pleaded that he was not present at the place of occurrence at the time of incident as he was present at his village Ramjanpur which is at a distance of 20 miles from the place of occurrence. 10. The F.I.R. of the present case was lodged against three accused persons, namely, appellant no. 1 Hifzul Hasan, his father appellant no. 2 Mehandi Hasan and accused Nahar Hasan, who happened to be the brother in law (Sala) of appellant no. 1. During the course of trial, the accused Nahar Hasan was acquitted by the trial court and appellant no. 1 along with his father Mehandi Hasan have been convicted under Section 302 I.P.C. for life imprisonment against which they preferred present appeal. During the pendency of the appeal, the appellant no. 2 Mehandi Hasan died on account of which his appeal was ordered to be abated by this Court vide order dated 11.12.2015, hence, there remains only appellant no. 1 Hifzul Hasan. 11. There appears to be three eye witnesses of the occurrence i.e. P.W. 1, Abdul Wahid, P.W. 2 Mithu and P.W. 3 Shakoor, who have been examined by the trial to support the prosecution case. 12. P.W. 1 Abdul Wahid has reiterated the prosecution case and stated that on the date of incident his brother Barkat Ullah deceased was coming from Har to village Thalia Nagla and at the Chaupal of Shafi, the accused appellant no. 1 Hifzul Hasan, his father accused Mehandi Hasan and Nahar Hasan surrounded him. The deceased was firstly assaulted by the accused Nahar Hasan with Knife on which he fell down and thereafter, the two accused, who were armed with fire arm, shot at the deceased, who succumbed to his injuries. 13. 1 Hifzul Hasan, his father accused Mehandi Hasan and Nahar Hasan surrounded him. The deceased was firstly assaulted by the accused Nahar Hasan with Knife on which he fell down and thereafter, the two accused, who were armed with fire arm, shot at the deceased, who succumbed to his injuries. 13. During the course of trial, he stated in his cross examination that he could not see whether the accused Nahar Hasan has inflicted blow of knife on the deceased or not. Further he has stated that the accused appellant no. 1 Hifzul has irrigated his land from the well of the deceased and when Barkat Ullah deceased demanded irrigation charges from him he refused to pay the same, hence they committed the murder of the deceased with the said motive. The incident was witnessed by him along with eye witnesses Mithu and Shakoor, who reached on the spot after hearing the alarm raised by the deceased. The information of the said incident was got written by him by Basi Ahmad and has proved the same as Ext. Ka-1 which he took to the police station on the basis of which the present F.I.R. was lodged against the accused persons. 14. Similarly P.W. 2 and P.W. 3 have also narrated the prosecution case in similar manner as has been stated by P.W. 1. P.W. 2 and 3, who are also eye witness of the said incident has stated before the trial court that though they have reached the place of occurrence on the alarm raised by the deceased and they have seen the deceased being shot dead by the accused Hifzul and Menhadi Hasan but could not witnessed whether the accused Nahar Hasan has inflicted knife blow on the deceased or not. The said witnesses have also stated that they were working at their respective fields and on hearing the alarm raised by the deceased, they reached at the place of occurrence and has seen the incident. 15. P.W. 4 Girja Shanker, Head Constable has stated that he was posted at the police station Musajhag on which date on the written report of P.W. 1 Abdul Wahid, the brother of the deceased, he prepared the Chick report and also endorsed the F.I.R. in the G.D. and has proved the F.I.R. as Ext. Ka-2 and G.D. as Ext. Ka-3. 16. Ka-2 and G.D. as Ext. Ka-3. 16. P.W. 5 S.I. Sitaram Gangwar, who was the first Investigating Officer has stated that when he came to know about the incident, he proceeded on the spot in the evening on 28.3.1982 and has recorded the statement of informant and conducted inquest of the deceased, sealed the dead body of the deceased and sent it for post mortem. He took three empty cartridges from the spot and prepared its recovery memo as Ext.Ka-4. He also made recovery of blood stained and plain earth which has also been proved by him as Ext. Ka-5. Further, he has proved the inquest report as Ext. Ka-6. 17. P.W. 6 S.I. Muin Uddin, who was the second Investigating Officer has stated that he took the investigation of the case from P.W. 5 S.I. Sitaram Gangwar and has prepared the site plan of the place of occurrence Ext. Ka-7 and recorded the statement of the witnesses and accused and submitted charge sheet against the accused under Section 302 I.P.C. The accused did not led any oral and documentary evidence in defence. 18. P.W. 7 O.P. Champa has stated that he was posted as Medical Officer T.B. Clinic, District Hospital, Budaun and had conducted the post mortem of the deceased on 29.3.1982 at 3.20 p.m. and has found eight ante mortem injuries on his person and his opinion the cause of death was shock and hemorrhage as a result of ante mortem injuries. The duration of death is about one day. He has proved the post mortem report of the deceased Ext. Ka-9. 19. Heard Sri Apul Mishra, learned counsel for the appellants, Sri Ashish Pandey, learned AGA for the State and perused the record. 20. It has been argued by learned counsel for the appellants that the motive which has been suggested by the prosecution for committing the murder of the deceased by the appellants appears to be too weak. He stated that the deceased was demanding irrigation charges from appellant no. 1 Hifzul Hasan as he has irrigated his land from the well of the deceased, which was not paid by him on account of which the deceased was murdered by the appellant no. 1 along with other accused persons, does not seem to be correct. He stated that the deceased was demanding irrigation charges from appellant no. 1 Hifzul Hasan as he has irrigated his land from the well of the deceased, which was not paid by him on account of which the deceased was murdered by the appellant no. 1 along with other accused persons, does not seem to be correct. The deceased himself was a man of criminal antecedents and was involved in many criminal cases, it appears that he was done to death by some unknown miscreants and when the prosecution failed to bring home the real culprit of the crime, the appellant no. 1 and his father Mehandi Hasan along with accused Nahar Hasan his brother in law were implicated in the present case by P.W. 1. He further argued that as per allegations made in the F.I.R. by P.W. 1 Abdul Wahid, it is categorical case of the prosecution that the deceased was surrounded by the accused appellants while he was coming from Har to village Thalia Nagala and the accused Nahar Hasan, who was armed with knife has firstly assaulted the deceased, who fell on the ground and thereafter, two appellants, namely, Hifzul and Mehandi Hasan fired two shots with their respective fire arm weapon, which hit the deceased, who succumbed to his injuries. He submitted that the post mortem of the deceased does not show that the deceased received any injury of knife on his person as he received only fire arm injuries on account of which he died, hence, the case of the prosecution is belied by medical evidence. 21. He next argued that the testimony of the eye witnesses of the occurrence i.e. P.W. 1, P.W. 2 and P.W. 3 also appears to be not trustworthy and their presence at the place of occurrence is doubtful. In this regard, he pointed out that as per the evidence, all the witnesses reached the place of occurrence on the alarm raised by the deceased from their respective places. He has drawn the attention of Court towards some contradiction in the statement of P.W. 2 and P.W. 3 in support of his argument. In this regard, he pointed out that as per the evidence, all the witnesses reached the place of occurrence on the alarm raised by the deceased from their respective places. He has drawn the attention of Court towards some contradiction in the statement of P.W. 2 and P.W. 3 in support of his argument. It was further argued by him that the doctor P.W. 7 in his evidence has stated that all the injuries which have been caused to the deceased by fire arm weapon could be caused in a standing position and not while the deceased was lying on the ground in tilted position. Hence, he argued that the deceased was done to death in some other manner and not as stated by the prosecution. It was lastly argued that there is no independent witness of the incident and P.W. 1 and P.W. 3 are closely related to each other, hence they are highly interested and partisan witnesses, therefore, the conviction and sentence of the appellant no.1 by the trial court does not appears to be sustainable and is liable to be set aside by this Court and the appellant no. 1 be acquitted. 22. Per contra, learned AGA has argued that the incident has taken place at 6 p.m. on 28.3.1982 in village Thalia Nagala and the F.I.R. of the incident was lodged by P.W. 1 Abdul Wahid, who is the brother of the deceased promptly on the same day at 7.15 hours at the police station Musajhag which was at the distance of 2 Km. from the place of occurrence. There are three eye witnesses of the incident i.e. P.W. 1, who is informant, brother of the deceased, P.W. 2 Mithu, villager and P.W. 3 Shakoor, who is maternal cousin brother of the deceased. They reached the place of occurrence as they were present near the place of incident and they have narrated the prosecution case which is corroborated by the post mortem report of the deceased. He refuted the argument of learned counsel for the appellant no. 1 that the deceased was assaulted by knife on his person by accused Nahar Hasan and thereafter, the appellant no. He refuted the argument of learned counsel for the appellant no. 1 that the deceased was assaulted by knife on his person by accused Nahar Hasan and thereafter, the appellant no. 1 and his father Mehandi Hasan fired shot at the deceased as was stated in the F.I.R. but the deceased did not receive any knife injury on his person and submitted that the same is not acceptable as it is evident from the evidence of P.W. 1, P.W. 2 and P.W. 3 that they saw the accused Nahar Hasan assaulted the deceased with knife but they did not see whether the deceased actually received injury of knife or not. Moreover, all the three witnesses have categorically stated that the appellant no. 1 who was armed with licensee gun and his father appellant no. 2 was armed with country made pistol assaulted the deceased with their respective weapon. The post mortem report of the deceased shows that the deceased died on account of fire arm injuries on his person, which is fully corroborated by their evidence. Moreover, the accused had motive to commit the murder of the deceased as has been suggested by the prosecution, hence, there appears to be direct evidence against the appellants and the trial court has rightly convicted the appellant no. 1 and the co-accused under Section 302 I.P.C. for life imprisonment. 23. Considered the rival submissions of learned counsel for the parties and perused the impugned judgment and record of the case. 24. It transpires from the prosecution case that the accused appellant no. 1 had irrigated his field from well of the deceased for which he had to pay some charges and when the same was demanded by the deceased from him, he refused to pay the same. The deceased himself was a man of criminal antecedent and the accused were having some fear from him, hence they on 28.3.1982 at 6.00 p.m. with the said motive assaulted the deceased with deadly weapon and the appellant no. 1 Hifzul Hasan and his father Mehandi Hasan, who were armed with licensee gun and country made pistol respectively shot at the deceased, who received three gun shot wounds of entry and three wounds of exit and further two other injuries which were also caused as a result of fire arm. The deceased died instantly on the spot. 1 Hifzul Hasan and his father Mehandi Hasan, who were armed with licensee gun and country made pistol respectively shot at the deceased, who received three gun shot wounds of entry and three wounds of exit and further two other injuries which were also caused as a result of fire arm. The deceased died instantly on the spot. On the alarm raised by the deceased, his brother P.W. 1 Abdul Wahid, who was at his house just near the place of incident and other two witnesses, P.W. 1 Mithu and P.W. 3 Shakoor, who were in their fields arrived at the place of incident. They have categorically stated before the trial court in their evidence that it was the appellant no. 1 and his father Mehandi Hasan, who have shot at the deceased. So far as the accused Nahar Hasan, who is stated to be armed with knife also assaulted the deceased but they did not witness that whether the deceased actually received knife injury or not. 25. Thus, the argument of learned counsel for the appellant no. 1 that the deceased was firstly inflicted with knife by accused Nahar Hasan, thereafter, shot by the two accused is hardly of any significance as the participation of the appellant no. 1 and his father Menhadi Hasan, who were armed with fire arms and have fired shot which was witnessed by the P.W. 1, P.W. 2 and P.W. 3, cannot be ruled out. Moreover, the F.I.R. of the incident was lodged by P.W. 1 promptly at 7.15 hours just after one and half hour of the incident at the concerned police station which was only 2 Km. away from the place of occurrence. There appears to be hardly any time for deliberation and due consultation for falsely implicating the accused named in the case. 26. P.W. 4 Girja Shanker, who was the Head Constable has also stated that the written report was given to him by P.W. 1 Abdul Wahid on the basis of which he registered the F.I.R. of the incident on the said police station and also endorsed the same in the G.D. Moreover, soon after registration of the F.I.R. of the incident, P.W. 5 Sitaram Gangwar, reached the spot and recorded the statement of informant P.W. 1 under Section 161 Cr.P.C. and conducted inquest of the deceased on 29.3.1982. He has proved the inquest report as Ext. He has proved the inquest report as Ext. Ka-6 and further three empty cartridges recovered from the place of occurrence which he took in his custody and prepared the recovery memo of the same as Ext. Ka-4. He further took plain earth and blood stained on 29.3.1982 and prepared the recovery memo as Ext. Ka-5 which shows that the incident had taken place on the date, time and the place as has been stated by the prosecution. The post mortem of the deceased was conducted by P.W. 7 Dr. O.P. Champa, who found three entry wounds injuries and three exit wounds of gun shot and two other injuries which were also as a result of fire arm , hence the participation of the accused, who were armed with licensee gun and country made pistol, in the incident is corroborated by medical evidence, hence, the argument of learned counsel for the appellants by which he has drawn the attention of the court towards the statement of the doctor, who has stated that all the injuries which have been received by the deceased could be in standing position and not in the tilted position, does not seem to be tenable and is not acceptable. 27. There appears to be no reason to doubt the ocular testimony of P.W. 1 and P.W. 3 simply because they are related to the deceased, hence their evidence cannot be discarded. Therefore, the argument of learned counsel for the appellant no. 1 on that count is also wholly unfounded and the trial court has rightly believed their evidence giving sound reasons for convicting the appellant no. 1 on the basis of their evidence. 28. Thus, the trial court has rightly arrived at the conclusion on the basis of the prosecution evidence that it was the appellant no. 1 Hifzul Hasan and his father co-accused Mehandi Hasan, who were involved in the murder of the deceased. The finding recorded by the trial court for convicting the appellant no. 1 does not call for any interference by this Court and the conviction of the appellant no. 1 by the trial court is hereby upheld. 29. In view of the forgoing discussion, the appeal of the appellant no. 1 Hifzul Hasan son of Mehandi Hasan is hereby dismissed. 30. The appellant no. 1 Hifzul Hasan is on bail. 1 does not call for any interference by this Court and the conviction of the appellant no. 1 by the trial court is hereby upheld. 29. In view of the forgoing discussion, the appeal of the appellant no. 1 Hifzul Hasan son of Mehandi Hasan is hereby dismissed. 30. The appellant no. 1 Hifzul Hasan is on bail. His bail bonds are cancelled and sureties are discharged and he shall be taken into custody forthwith to serve out the sentence awarded to him by the trial court. 31. Registrar General is directed to send copy of this judgment to District Judge, Budaun for its immediate compliance forthwith.