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2020 DIGILAW 489 (ALL)

Faiyaz v. State of U. P.

2020-02-13

ANJANI KUMAR MISHRA I, GAUTAM CHOWDHARY

body2020
JUDGMENT : 1. By way of the instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 21.12.1987 passed by the VII-Additional Sessions Judge, Meerut, in Sessions Trial No.8 of 1986 (State of U.P. Vs. Faiyaz and others), under Section 302, 302/34 I.P.C., Police Station-Kithore, District-Meerut, whereby all the appellants have been sentenced to life imprisonment. 2. Heard Sri Ajay Kumar Pandey, learned counsel for the appellants, Shri Krishna Pahal, learned Additional Advocate General assisted by Sri Bhanu Prakash Singh, learned A.G.A. for the State and perused the record. 3. Prosecution case is that one Shaharyab s/o Afsar of village-Jadauda, P.S.-Kithore, District-Meerut lodged an F.I.R. at Police Station-Kithore, District-Meerut on 13.10.1985 at 3:15 p.m. against accused Faiyaz, Mahfooz, Hasnain and Tariqat alleging that the informant and his father Afsar were going to collect fodder from jungle on 13.10.1985 around 12:00 noon, while they were so proceeding and reached near the sugarcane filed of Faiyaz. Suddenly Faiyaz, Mahfooz, Hasnain and Tariqat, the co-villagers appeared on the scene from the sugarcane field possessing country made gun in their hands challenging that they will not spare the informant side whereupon the informant and his father got frightened and they tried to flee away from the scene when Faiyaz fired with his gun on informant’s father due to which he fell down and the informant saved himself by fleeing away from the scene. On hearing the sound of the fire villagers Yusuf, Mahmood, Muzaffar, Hisamuddin, Nazar Hussain and Akhtar arrived on the spot and on seeing these persons the assailants also secured their escape and disappeared in the sugarcane field. Motive imputed in the F.I.R. was one as some previous altercation/ haggling that took place between the father of the informant and the accused side when Akhlaq wanted to construct the wall whereupon life threat was extended by the accused. After the occurrence the co-villagers and the informant rushed to the spot where the informant’s father fell down then they came to know that the victim has died. One barrel and slipper belonging to the accused was also lying on the spot. This report is Ex. Ka-1. Relevant entries were made in the concerned check F.I.R. whereby case was registered at case crime no.333 of 1985 under section 302 I.P.C. at Police Station-Kithore, District-Meerut on aforesaid date and time. The check F.I.R. is Ex. One barrel and slipper belonging to the accused was also lying on the spot. This report is Ex. Ka-1. Relevant entries were made in the concerned check F.I.R. whereby case was registered at case crime no.333 of 1985 under section 302 I.P.C. at Police Station-Kithore, District-Meerut on aforesaid date and time. The check F.I.R. is Ex. Ka-3 and the concerned G.D. of the aforesaid date and time at aforesaid police station is Ex. Ka-4. Investigation of this case was taken by Inderdev P.W.-6. He took note of the contents of the F.I.R. and the concerned general diary entry and arrived on the spot at around 5:30 p.m. in the jungle of village Jadauda. He prepared the inquest report on the spot-Ex. Ka-5 and apart from that he also prepared relevant papers. The challan dead body, photo dead body and letter to C.M.O./R.I. and photo nash etc. These papers are Ex. Ka-6 to Ka-9. Besides he also prepared memo of simple and blood stained clay roll Ex. Ka-12. He also made the memo of slipper and the barrel found on the spot Ex. Ka-13. He prepared the site plan Ex. Ka-14. Besides he also sent the dead body of the deceased Afsar for post-mortem examination to mortuary where P.W.3 Dr. R. Singh conducted the post-mortem on the cadaver of the deceased on 14.10.1985 at 11:30 p.m. wherein the following ante-mortem injuries were noted :- (i) Guns shot would of entry 1.5 cm x 1 cm x brain cavity deep on back of head 13 cm behind the right ear. The margins were inverted and eccohymosed and directing forward. (ii) Lacerated wound (gun shot wound of exit) 15 cm x 10 cm x crenial cavity deep on right side of forehead and upper part of nose. Cranial cavity open and brain matter partially absent and communicating to injury no.1. 4. In the opinion of doctor the cause of death was shock and haemorrhage as a result of ante-mortem injury. Post-mortem report is Ex. Ka-2. The investigation was completed and charge-sheet Ex. Ka-15 was submitted. Subsequently the trial commenced and after hearing both prosecution and the accused on point of charge prima facie ground was found existing for framing charge under section 302/34 I.P.C. The charge was abjured and the accused opted for trial. 5. Post-mortem report is Ex. Ka-2. The investigation was completed and charge-sheet Ex. Ka-15 was submitted. Subsequently the trial commenced and after hearing both prosecution and the accused on point of charge prima facie ground was found existing for framing charge under section 302/34 I.P.C. The charge was abjured and the accused opted for trial. 5. The prosecution produced six witnesses out of whom P.W.1 Shaharyab, P.W.2 Yusuf and P.W.4, Hisammuddin-are witnesses of fact and the rest of the prosecution witnesses say-Dr. R. Singh is P.W.3, Ram Saran Singh P.W.5 and the investigating officer Inderdev P.W.6 are formal witnesses. Statement of the accused was recorded under section 313 Cr.P.C. wherein the accused claimed to have been falsely implicated on account of enmity. No evidence whatsoever was led by the defence. The case was heard on merit and after evaluating the facts and circumstances and evidence on record the learned trial judge passed aforesaid impugned judgment and order of conviction and sentence dated 21.12.1987, under section 302/34 I.P.C. and thus sentencing them to imprisonment for life. Consequently, this appeal. 6. Contention is that the first information report itself is suggestive of fact that the informant was not present on the spot and the natural corollary will be that after a blind murder took place and the informant received the information of the incident arrived on the spot and in consultation with the police a false report was lodged on account of subsisting enmity suggesting prejudicial bent of mind of the informant as has emerged in the testimony of the prosecution witnesses of fact. The deceased Afsar was having criminal antecedent and was involved in commission of heinous offences. There was no motive for the present surviving appellants to have ever indulged in the act of firing and remaining present on the spot at the time of the occurrence stated to have occurred at /around 12:00 noon on 13.10.1985 in the jungle of village Jadauda. Considering the entire case how can it be said that the incident took place around 12:00 in the noon and the report was lodged at 3:15 p.m. at the police station-Kithore in district-Meerut. The distance between the place of occurrence and the police station was stated to be more than 10 kms. 7. Considering the entire case how can it be said that the incident took place around 12:00 in the noon and the report was lodged at 3:15 p.m. at the police station-Kithore in district-Meerut. The distance between the place of occurrence and the police station was stated to be more than 10 kms. 7. The prosecution case is not specific against the present appellants that they ever acted or reacted on the scene by participating in the commission of the offence and were acting in furtherance of the common intention of the main accused Faiyaz. On account of the enmity prejudice only P.W.1, the informant Shaharyab has lodged false information with the police. The point is that for application of common intention against an accused it would have to be proved within the four corners of section 34 I.P.C. that it was also the common intention of the another co-accused who was present on the spot and he too interacted to have the plan executed to a particular end but in this case this essential ingredient of subsisting common intention is altogether missing. There is no specification that all the four accused with intent to kill Afsar fired from their respective weapons. Had the prosecution witness P.W.1, the informant and the son of the deceased would have been present on the spot they would have narrated in particular as to when and in what manner the shots were fired. But the first information report is silent about any such specification of firing. However the case has been improved in the testimony before the trial court and the role of firing has been assigned in the F.I.R. itself to only one accused Faiyaz whereas the testimony of P.W.1 is to the magnitude that all fired. More so, what was the reason that the four assailants who are claimed to have been present on the spot all armed with country made gun will leave the one of the two persons to escape from the scene so as to give evidence against the miscreants. This is particular aspect and a particular circumstance not properly explained by the prosecution which naturally gives rise to fact that P.W.1 Shaharyab was not present on the spot at the time of the occurrence and a false case has been cooked up. 8. This is particular aspect and a particular circumstance not properly explained by the prosecution which naturally gives rise to fact that P.W.1 Shaharyab was not present on the spot at the time of the occurrence and a false case has been cooked up. 8. Regarding the appropriate time of the alleged occurrence that it in fact took place around 12:00 noon on 13.10.1985, the testimony of the doctor witness PW.3 Dr. R. Sing is indicative of the fact that the death of the victim might have taken place sometime in the night intervening 12/13/.10.1985 and the statement is specific in the cross-examination of the aforesaid witness. This being the reasonable probabilities of the case, how can it be said with certainty that the occurrence took place around 12:00 noon only on 13.10.1985. The ‘mens rea’ as was required to be proved against the present appellants qua the main accused Faiyaz has not been established properly. There is nothing on the point as to from what distance/ range the shot was fired. Assuming it to be that any such occurrence took place even then the statement of P.W.1 Shaharyab reveals that at the very particular time when the shot hit the deceased this witness did not see that particular occurrence then how can it be said that the shot fired by Faiyaz hit the deceased. 9. Controverting the aforesaid argument learned Additional Advocate General Shri Krishna Pahal assisted by learned A.G.A. Shri Bhanu Prakash Singh have submitted that the case of the prosecution is well proved under section 302 I.P.C. by virtue of application of section 34 I.P.C.. Learned counsel also spelt out section 34 I.P.C. in support of his claim that in this case the act imputed is admittedly of criminal nature and the scene of occurrence is self-explanatory of the common intention of all the accused. It is noticeable that the appearance of the present appellants on the scene is in a group and all of them are possessing country made gun and an exhortation was made on the spot which frightened the deceased and his son P.W.1 and they tried to scamper away from the scene however in the meanwhile fire was opened which hit the deceased-Afsar. Postmortem examination report is indicative of fact that only one shot was fired. Postmortem examination report is indicative of fact that only one shot was fired. When this particular aspect was asked by the trial court itself with P.W.1 then P.W.1 specifically suggested that only one fire was shot on the spot. However only one shot completed the task therefore there was no point in further opening another shot as no one was impeding his way to execute the crime. Each and every particular aspect regarding the occurrence, say-its commencement, manner of happening and its completion has been asked in all niceties by the defence in the cross-examination of the informant after strenuous test he remained intact. Consequently, it cannot be said that he was not present on the spot and the prevailing circumstances of this case are indicative of nothing else than the criminal bent of mind and the criminal intent working among all the assailants present on the spot to execute the plan who have been stated to be four in numbers. Learned A.A.G. also urged that there was no reason for false implication and sparing the real culprit, may be that there was some cause for false involvement but that could not work to the impact that the real culprits are given a go-bye and only false persons are named in the F.I.R.. There is no other person named the F.I.R. nor has anything adverse creating any doubt in the prosecution story has emerged in the cross-examination of P.W.1 which may render his testimony unworthy of credit. The case of the prosecution is proved to the hilt. Under circumstances, conviction is justified. 10. We have also considered the rival submissions. Now in the light of the above, the core consideration that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charge against the present appellants and in particular the fact that P.W.1 the informant was present on the spot and can it be reasonably believed that he saw the occurrence ? 11. We can proceed straightway on the description of the F.I.R.. 11. We can proceed straightway on the description of the F.I.R.. It proceeds on to describe that it was 12:00 noon on 13.10.1985 when the informant and the victim Afsar were proceeding to collect fodder and as soon as they reached near the sugarcane field of Faiyaz then Faiyaz, Mahfooz, Hasnain and Tariqat (co-villagers) all of a sudden appeared on the spot emerging out of the sugarcane field possessing country made gun in their hands exhorting that no one will be spared whereupon informant and his father tried to run away from the scene. In the meanwhile Faiyaz fired with his gun pointing on the father of the informant which fire hit him. He screamed and fell out. On hearing the noise of the sound of the fire a number of persons Yusuf, Akhtar Muzaffar and others arrived on the spot whereupon the assailants secured their escape. Certain other description has been also given regarding the point of discontent prevailing between the sides on account of some dispute regarding construction of some wall. Apart from that it has also been described in the F.I.R. that after that the informant went up to his father and found him dead and there was lying some barrel and slipper scattered on the spot. The report was lodged on the very same day at 3:15 p.m. at police station-Kithore of district-Meerut. The written report is Ex. Ka-1 and on the basis of the same relevant entries were noted down in the concerned check F.I.R. Ex. Ka-3 and the concerned G.D. Ex. Ka-4 and a case was registered against the accused at case crime no.333/ 1985, under section 302 I.P.C.. Consequently, the investigation ensued and it was taken over by Shri Inderdev Jha-P.W.6 who noted contents of the F.I.R. and arrived on the spot around 5:30 p.m. the very same day. He selected the witnesses for preparation of the inquest and prepared the inquest report Ex. Ka-5. Thereafter relevant papers were also prepared for sending the body for postmortem examination. These papers are Ex. Ka-6 to Ka-9. Besides he also completed other formalities and collected the simple and the blood stained clay from the spot and prepared memo of the same Ex. Ka-12. Similarly, he also prepared memo of paper and barrel Ex. Ka-13. Site plan was also prepared which is Ex. Ka-14. These papers are Ex. Ka-6 to Ka-9. Besides he also completed other formalities and collected the simple and the blood stained clay from the spot and prepared memo of the same Ex. Ka-12. Similarly, he also prepared memo of paper and barrel Ex. Ka-13. Site plan was also prepared which is Ex. Ka-14. Thereafter the investigation was taken over by Shri Ved Prakash, the second investigating officer who after recording statement of the accused filed the charge-sheet which has been proved by this witness as Ex. Ka-15. 12. That way we can notice that proper investigation after the lodging of the F.I.R. culminated into filing of the charge-sheet. Contention is that P.W.1 was not present on the spot and assuming it to be that he was present, even then the present surviving appellants have not been imputed any specific role nor any reactionary role previous or subsequent imputed so as to establish that they shared any common intention to kill Afsar though the fire might have been caused by main accused Faiyaz. The contention is that the first informant was allowed to escape unhurt and no attempt whatsoever was made to open fire on him. In that regard we have before us the testimony of P.W.1. We upon careful scrutiny of the entire testimony and in particular the examination-in-chief come across the fact that the incident as narrated in the first information report has been virtually dittoed and on cross-examination being done various aspects reflecting on point of involvement of the deceased and the informant in various criminal cases has been tried to be brought to the fore but that had got no relevancy with the description of the occurrence as has emerged in further cross-examination as appears on page No. 22 of the paper book, wherein in the first paragraph on point of the topography of the place of occurrence each and every particular relating the incident has been reasonably connected with the place of occurrence. All the relevant particulars of the incident as to what happened when the offence was being committed and the shot hit the deceased and where the deceased fell down has been properly replied and proved by P.W.1. 13. Contention is that at that very particular time when the shot hit Afsar, the informant P.W.1 did not see it. All the relevant particulars of the incident as to what happened when the offence was being committed and the shot hit the deceased and where the deceased fell down has been properly replied and proved by P.W.1. 13. Contention is that at that very particular time when the shot hit Afsar, the informant P.W.1 did not see it. But we upon scrutiny of testimony of P.W.1 record our finding that the description of the occurrence given by P.W.1 is innocuous, in view of fact that no further cross-examination has been done on the point as to how he came to know about the fact that the shot fired by Faiyaz hit Afsar and it was under these circumstances that the trial court tried itself to unfold the truth by asking question to the witness on that point of occurrence then it transpired that only one shot was fired on the spot. Now the natural explanation is that two men are proceeding together and an offence is committed against them then it is most natural that the person under fear of imminent death would try to flee away from the scene and will not concentrate on the victim of the occurrence as to at what part of the body he has been hit although there is no cross-examination either general or specific on this aspect. The entire episode as described by the prosecution has been established in the cross-examination of P.W.1 in its entirety. 14. Now, the claim is that the accused never participated in the occurrence. That claim looses significance and goes into oblivion on account of specific testimony of P.W.1 regarding presence of the accused on the spot thus establishing their presence on the spot. Now the next contention comes into picture that assuming it to be that they were present on the spot even then no action or reaction was made by the present appellants and no nexus with the intent of the main accused to execute the plan with Faiyaz has been reasonably established. On that count also we may take notice of contents of section 34 of the Indian Penal Code which primarily stipulates about any criminal act being committed by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. On that count also we may take notice of contents of section 34 of the Indian Penal Code which primarily stipulates about any criminal act being committed by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. Here, the act of one becomes act of all though no covert act done by others but they being present with weapons in hand profusely establishes prevalence of sharing of common intention to commit the crime. That being the dictum laid down under section 34 I.P.C.. We may refer to the attendant facts and circumstances of this case on the spot itself. 15. The scenario claimed and proved in this case appears to be that four persons are stated to have arrived in a group on the spot possessing weapons in their respective hands. Only one shot was fired by one among the four culprits. Can it be said that the other assailants present on the spot never entertained any such animus like the one who fired on the deceased? The answer would be absolutely in negative. Possession of lethal weapon by other accused in company with prime accused itself is indicative of the animus shared by one and all. Since the presence of the co-accused is established on the spot beyond doubt then their remaining silent on the spot and not opening fire either in retaliation or as in reactionary measure on the fleeing of informant would not ipso-facto create a situation to be construed that the other three accused/the present appellants were not sharing the animus to commit the crime with the main accused. Here the liability is vicariously imposed by virtue of application of Section 34 I.P.C. The object and the intention was one to kill the deceased. Consequently, the argument falls flat that in the absence of any overt act common intention cannot be applied to the other accused though present on the spot. 16. Here the liability is vicariously imposed by virtue of application of Section 34 I.P.C. The object and the intention was one to kill the deceased. Consequently, the argument falls flat that in the absence of any overt act common intention cannot be applied to the other accused though present on the spot. 16. Now we may observe with wisdom that in the matters of ascertaining prevalence of common intention among all the accused not only the evidence but the surrounding circumstances have also got their positive roles and in case it all if taken as a whole a reflection immediately emerges that each one present on the spot must have known the nature of the offence intended by the group, it being so each one forming the group shall be imputed with the same intention that was the animus working in the mind of one who executed the plan and it is established law that common intention may also develop on the spot itself. Here prior concert among the accused is proved by the way the offence was committed and manner of offence is self-explanatory. In this case the pre-concert among all the assailants is well established by the very description of the incident as well as the manner and style of the incident itself as emerging in testimony that all the assailants appeared on the spot from the sugarcane field of Faiyaz possessing country made gun in their respective hands, no matter if one shot was fired by one among the four assailants. If it so occurred and the same has been proved by the prosecution witnesses by cogent testimony then the only outcome is that all the assailants shared the common intention to kill and to kill the victim and nothing else. That being the position, claim of the appellant that they remained silent on the spot and never shared the common intention with the main assailant is not acceptable. The trial court has rightly held that the case is one attracting application of section 34 I.P.C. and by virtue of application of section 34 I.P.C. rightly recorded finding of conviction under section 302 I.P.C. against the accused-appellants which finding of conviction cannot be interfered by us, consequently, this appeal lacks merit and the same is dismissed. 17. In this case, appellants are on bail. Their bail bonds and sureties are cancelled. 17. In this case, appellants are on bail. Their bail bonds and sureties are cancelled. They shall be taken into custody forthwith for serving out the sentence imposed upon them. 18. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.