JUDGMENT Imtiyaz Murtaza and Amar Saran, JJ.
1. The above appeals are preferred against the judgment and order dated 15.10.1981 passed by V addl. Sessions Judge, Bareilly in S.T. No. 419 of 1980 whereby the appellants have been convicted under Section 302/149 I.P.C. and sentenced to undergo imprisonment for life. Appellants Wahid and Mohd. Ahmad are further convicted under Section 147 I.P.C. and sentenced to one year R.I. Zahid and Hori Lai are further convicted under Section 148 I.P.C. and sentenced to undergo imprisonment for two years.
2. The C.J.M. Bareilly has reported vide his report dated 21.9.2004 that the appellant Ram Chand has died about 8-10 years back, hence the appeal filed by the appellant Ram Chand has already been dismissed by us by order dated 8.7.2005 as abated. Similarly the appeal of appellant Hori Lai has been dismissed as abated vide order dated 15.7.2004 on the report of C.J.M. Bareilly dated 29.6.2004 that appellant Hori Lai has died in police encounter on 15.3.1987.
3. Brief facts of the case, mentioned in the report lodged by Mohd. Iliyas, are that on 25.11.1979 his brother Afsar Hussain, after taking his meal came out of the door, Ram Chandra and Hori Kahar resident of village Churai Dalpatur asked him to accompany them as they have to talk with him. The informant had also followed them. At about 12 O'clock when they reached near the Galiyara of the house of Latafat Hussain, Mohd. Ahmad son of Sajjad Hussain resident of Sujatpur, Zahid and Wahid sons of Liyakat Hussain resident of Diyoria, Police station Meerganj District Bareilly came there. Zahid was armed with a country made pistol, Wahid and Mohd. Ahmad were carrying lathis. It is further alleged that as his brother reached at the door of Latafat Hussain, on the exhortation of Mohd. Ahmad, Ram Chandar and Hori Lai took out their country made pistols and fired. Afsar Hussain ran towards the courtyard of Latafat Hussain and collapsed. Thereafter, Ram Chandar had fired on the head of his brother. He and his brother raised alarm and his uncle Ashfaq Ahmad son of Nazir Ahmad and Zamiluddin son of AH Mohammad and Ikrar Hussain son of Tajuddin and. Zamil Ahmad son of Alauddin came there and tried to apprehend the accused. Ram Chandar, Hori and Zahid reloaded their pistols and threatened them and challenged that they had taken revenge of his brother and all of them ran towards western side. His brother succumbed to his injuries. He further stated that his brother was under surveillance, he was a member of the Gang of Chhidda Kahar of Churai, Shahid of Diyoriya and Qadeer of the village. About 3 -4 days back all of them were killed in a police encounter. The accused had suspected that his brother had conspired with the police and got them killed. His brother was shot dead in a broad day light. It is further mentioned that Mohd. Ahmad was inimical with his brother. Report was registered on 25.11.1979 at 2.15 p.m. at Police Station Meerganj, Bareilly by Head Moharrir Jagvir Singh. He had prepared the Chik F.I.R (Ext. Ka -3) and entered in the G.D. (Ext. Ka-4). After the registration of the case, Jaipal Singh Station Officer commenced the investigation. He recorded the statement of informant Iliyas and thereafter reached at the place of occurrence and prepared the inquest report, which is Ex. Ka-5. He also prepared photo nash, challan nash ( Ext. Ka- 6 and 7 ). The dead body was sealed and handed over to the constables Jiraj Singh and Hukum Singh. He had prepared the site plan which is Ext. Ka-8. He had collected the blood stained and plain earth and prepared its recovery memo (Ext. Ka-9). After the conclusion of the investigation he had submitted the charge sheet against the accused (Ext. Ka-10).
4. The autopsy on the dead body of Afsar was conducted by Dr. K.P. Singh on 26.11.1979 at about 2.00 p.m. In the external examination he found that the deceased was of average height and built. Rigor mortis was present in all the limbs. He noted following ante mortem injuries on the body;
1. A gun shot wound 1A cm. in diameter x chest cavity deep on the right side chest 3 cm below the middle region of the right clavicle.
2. Gun shot wound 1A cm. in diameter x chest cavity deep on the right side chest 4 cm. below injury No. 1
3. Gun shot wound 1A cm. in diameter x chest cavity deep on the right side chest 6 Vi cm. below the medial end of the right clavicle.
4. Gun shot wound XA cm. in diameter x cuticle deep on the left side chest just below the medial end of the left clavicle.
5. Gun shot wound XA cm. in diameter x skin deep on the left side chest 1 cm. outer to injury No. 4
6. Gun shot wound 1A cm. in diameter x chest cavity deep on the left side chest 4 cm. below injury No. 5
7. Gun shot wound XA cm. in diameter x skin deep on the left side chest 2 cm. below and outer to injury No. 6
8. Gun shot wound 2 cm. x 1 cm. x cuticle deep on the left side chest 9 cm. above and outer to injury No. 7
9. Gun shot wound Vi cm. x XA cm. x ski deep on the left side chest 8 cm. below and medial to injury No. 7
10. Gun shot wound 4 cm. x 1 cm. x cuticle deep on the medial aspect of the right clavicle region.
11. Gun shot wound XA cm. in diameter x muscle deep on the right side neck just above the mid region of the right clavicle.
12. Gun shot wound XA cm. in diameter x muscle deep on the right side neck just above the medial region of the right clavicle,
13. Obliquely vertical in ward and forward gun shot wound 5 cm. x 4 cm. x bone deep on the right side neck 5 cm. below and post to the right mastoid process with the fracture of the 4th , 5th , 6th and 7 cervical vertebrae into pieces.
5. The doctor found about 3 ounces semi digested food present in the stomach and also found semi digested food and gases in the small intestines. He also found faecal matter and gases in the large intestine. In the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
6. After the submission of the charge sheet the case was committed to the court of the Sessions. The Sessions Judge had framed charges under Section 302/149 against the appellants and co-accused Ram Chandra and Hori Lal who had died during the pendency of the appeal .The Sessions Judge also framed charge under Section 147 I.P.C. against Mohd. Ahmad and Wahid and charge under Section 148 was framed against Zahid, Ram Chandra and Hori Lal.
7. The prosecution, in order to prove its case, examined six witnesses. P.W. 1 Iliyas Miyan and P.W. 2 Ashfaq Ahmad are eye witnesses. P.W. 3 constable Jiraj Singh escorted the dead body to the mortuary for the post mortem examination, P.W. 4 Dr. K.P. Singh conducted the post mortem examination, P.W. 5 constable Jagvir Singh registered the F.I.R., P.W. 6 Station Officer Jaipal Singh is the investigating officer of the case.
8. P.W. 1 Iliyas is the informant and he had proved the F.I.R. and deposed that Hori and Ram Chandra were resident of village churai. Chidda, the real brother of Ram Chandra was killed in a police encounter about 3-4 days prior to the occurrence. Qadir Ahmad, cousin of Mohd. Ahmad was also killed in the police encounter. Shahid, real brother of Zahid and Wahid, was also killed in the same police encounter. Afsar Hussain was his elder brother and he was involved in several murder and dacoity cases. He was associate of the accused. They had suspicion that Afsar Hussain got killed Shahid, Chhidda and Qadir with the help of the police. Some altercation had taken place between his brother and Mohd. Ahmad for cutting of some tree branches. A report was lodged by Mohd. Ahmad against his brother. About 3- 4 months back Eijaj, brother of Mohd. Ahmad had received fire arm injuries and a report was lodged by Mohd. Ahmad against his brother Afsar Hussain under Section 307 I.P.C. On account of this incident accused were inimical with his brother. It is further deposed that the occurrence took place at about 12 O'clock. He and his brother came out of the door and they met Ram Chandra and Hori. They asked Afsar to accompany them because they had to talk with him. He had also followed them. As they reached near the house of Latafat Hussain, Mohd. Ahmad, Zahid and Wahid suddenly reached there. Mohd. Ahmad and Wahid were carrying lathi and Zahid had a country made pistol. As Afsar reached in front of the door of Latafat, on the exhortation of Mohd. Ahmad Hori and Ram Chandra took out their country made pistols and surrounded his brother. On the alarm raised by them, Ashfaq Ahmad, Zamil Ahmad, Zamiluddin, and Ikrar Hussain reached there. Zahid and Hori fired at Afsar Hussain. After receiving injuries Afsar Hussain fell in the court yard of Latafat. Thereafter, Ram Chandra had also fired. The accused had threatened the witnesses and challenged that they have taken the revenge of their brothers. His brother had died on the spot. He lodged the F.I.R. ( Ext. Ka-1).
9. P.W. 2 Ashfaq Ahmad had also supported the case of the prosecution. He stated that on the date of the occurrence at about 12 O'clock he was in the Galiyara, in front of his house. On hearing hue and cry he reached in front of the house of Latafat Hussain. Zamil son of Ali Ahmad, Ikrar Hussain and Zamil Ahmad and Iliyas had also reached there. He saw that Hori and Zahid fired upon Afsar Hussain with their country made pistols. After receiving the injuries Afsar fell in the court yard of Latafat Hussain. Thereafter Ram Chandra had also fired at him. Mohd. Ahmad and Wahid Hussain were also present there carrying lathis. They had tried to apprehend the assailants but they had threatened and challenged that they have taken the revenge of his brother. After committing the murder, all of them ran away towards the western side.
10. P.W. 3 is constable Jiraj Singh. He stated that on 25.11.1979 healongwith constable Hukum Singh had taken the dead body of Afsar Hussain alongwith relevant papers for the post mortem examination. The post mortem of Afsar Hussain was conducted on 26.11.1979, thereafter the doctor had handed over sealed clothes of the deceased and a sealed packet which he had deposited in the police station Meerganj.
11. P.W. 4 Dr. K. P. Singh conducted the post mortem examination and noted the ante mortem injuries which are mentioned in the earlier part of this judgment.
12. P.W. 5 Constable Jagveer Singh registered the chik F.I.R. Ext. Ka-3 and proved G.D entry Ext. Ka-4.
13. P.W. 6 Jaipal Singh is the investigating officer of the case. After conclusion of the investigation he had submitted the charge sheet against the accused persons.
14. The case of the defence is of denial and false implication. Mohd. Ahmad stated that he was falsely implicated on account of enmity and they had examined D.W. 1 Ram Autar who was a record keeper in police office Bareilly. He stated that in the G.D. dated 21.8.1977, a report No. 21 under Section 323, 504 I.P.C. Eijaj Hussain son of Sajjad Hussain is entered. This report is registered against Afsar Hussain, Ashfaq Hussain son of Nazir Ahmad, Abfar Hussain son of Nazir Ahmad, Khalil Ahmad son of Allauddin.
15. The Sessions Judge relying upon the prosecution evidence convicted the appellants as aforesaid.
16.We have heard the learned counsel for the appellants and the learned A.G.A. for the State and perused the entire record and judgment and order of the Sessions Judge.
17. Learned counsel for the appellants submitted that the appellants had no motive to commit the offence, that no independent witnesses is supporting the prosecution case, the presence of the witnesses is doubtful as they did not receive any injury, there is conflict in the direct and medical evidence and the last submission of the appellants' counsel is that appellant Mohd. Ahmad and Wahid did not participate in the occurrence. The exhortation part is not corroborated by any reliable evidence and they are falsely implicated in this case on account of enmity.
18. The eye witness account is furnished by two eye witnesses namely Iliyas Miya and Ashfaq Ahmad. Both eye witnesses are close relative of the deceased. P.W.I Iliyas Miya is real brother of the deceased and P.W.2 Ashfaq Ahmad is uncle of the deceased. But this will be no ground to disbelieve their testimony, if it otherwise, inspires confidence. The law on the point is well settled that the testimony of related witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution. The counsel for the appellant had not seriously challenged the time and place of the occurrence but they did challenge the presence of the informant P. W.I Iliyas Miya at the alleged time of the occurence. It is submitted that he was not living in the house of the deceased. His house was at a distance of 40-50 steps. It is also contended that if he was present at the place of occurrence he should have made some effort to save the deceased. The story of following the deceased and accused by him can not be accepted and the allegation that deceased had came out of the house after taking meal is not corroborated by the medical evidence.
19. We have carefully examined his testimony in the light of the submissions of the counsel for the appellant. P.W. 1 Iliyas Miya had deposed that he had arrived at the house of Afsar about two three hours prior to the occurence. He had taken his meal at his house. He also stated that Afsar had not taken meal in his presence. He stated that when he was in the courtyard Afsar had taken his meal in the kitchen. In the present case there is no evidence about the exact time when the meal was taken by the deceased before going out of the house nor about the type or nature of the food consumed by him.
20. In the first information report he had mentioned that his brother had accompanied accused when he came out of the house after taking his meal. In evidence he stated that his brother had taken meal one and a half- two hours prior to going alongwith the accused persons. He also admitted that he had given the same statement to the investigating officer which he had mentioned in the F.I.R. and he also stated that his statement was correct. If there is some contradiction in his testimony about his version in first information report about the time when deceased had came out of the house after taking meal, in our opinion, there is no such material contradiction to discredit his otherwise reliable evidence. These contradictions are natural when the evidence is recorded after a long lapse of time. In this case the evidence was recorded after more than eighteen months.
21. Learned counsel for the appellant submitted that P.W.I is changing his statement to make it in conformity with the medical evidence and actually he was not present at the alleged time of occurrence. We have perused the evidence of P.W. 1 and also the post mortem examination report which shows that stomach contains 3 ounces semi digested food material and in small intestines semi digested food material and gases were present. According to the doctor who had conducted the post mortem examination the deceased might have taken meal between three to five hours prior to his death. Therefore, the contention of the appellants' counsel is that the position of the stomach was not possible if the deceased was murdered immediately after taking his meal. In the present case there is no evidence about the exact time when the meal was taken by the deceased before going out of the house nor about the type or nature of the food consumed by him. His testimony shows that his brother had taken his meal in the kitchen and he was in the courtyard of the house.
22. The power of digestion depends on various factors like the nature of food and the digestive capacity of individual. A careful scrutiny of his testimony shows that his version with regard to actual assault is reliable and is also in confirmity with the post mortem examination report. He deposed that Hori and Ram Chandra had fired at the deceased who fell down, after receiving injuries, in the courtyard of Latafat Hussain . It is further mentioned that thereafter, Ram chandra had fired with his country made pistol. The post mortem report fully supports the ocular version. All the injuries except injury No. 13 are from a distance and this injury is from a very close range. The post mortem report mentions that wadding piece was found in injury No. 13 and blackening and scorching was also present. The manner of assault, place and time of occurrence is fully corroborated by the testimony of P.W.I. The testimony of P.W. 1 is also fully corroborated by the testimony of P.W. 2 Ashfaq Ahmad. P.W. 2 Ashfaq Ahmad had also supported the prosecution case. He was subjected to searching cross examination but nothing material could be elicited to discredit his presence at the place of occurrence. The Sessions Judge rightly relied upon the testimonies of these witnesses in convicting accused who were assigned the role of firing at the deceased.
23. The last submission of the appellants' counsel is that the participation of Mohd. Ahmad and Wahid is doubtful. The role of firing has not been assigned to them and it is alleged that they had exhorted other accused. They had not gone to the house of the deceased. According to the allegations of the prosecution the deceased was called by Hori and Ram Chandra and when they reached near the house of Latafat Hussain he was done to death by firing from country made pistols. It is contended by the counsel for the appellants that if it was a planned murder then there was no occasion for Mohd. Ahmad and Wahid to exhort other accused. It is further contended that exhortation part is also not corroborated by P.W. 2 Ashfaq Ahmad. We have considered the submission of the counsel for the appellants and also perused the evidence on the record. We find substance in the submission of the counsel. P.W.2 Ashfaq Ahmad deposed that Hori and Zahid fired at the deceased and when he fell down he was shot by Ram Chandra. It is further alleged that after the occurrence all the accused ran away. It is further stated that Mohd. Ahmad and Wahid were carrying Lathis and they tried to apprehend them but accused ran away brandishing pistols. We have considered the submission of the counsel and in our opinion there is substance in his submission The exhortation part is not expressly assigned by P.W.2 Ashfaq Ahmad to these two accused. Moreover, if accused had determined to kill the deceased and 3 persons were armed with country made pistol, there was no need for the persons holding Lathi to exhort others to fire on the deceased.
24. The testimony of P.W. 1 Iliyas with regard to participation of Mohd. Ahmad and Wahid is not corroborated by any other evidence. There is no other overt act on the part of Mohd. Ahmad and Wahid except exhortation. In our opinion it is not safe to convict them only on the basis of their role of exhortation. Their participation in the occurrence is doubtful and they are acquitted.
25. For the reasons stated above, the appeals are decided as under:
Crl. Appeal No. 2382 of 1981 is allowed. The appellant Mohd. Ahmad is acquitted of the charges. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.
26. Crl. Appeal No. 2391 of 81 is partly allowed. So far as appellant Zahid is concerned his appeal is dismissed. His conviction and sentence awarded by the Sessions Judge is affirmed. He is on bail. The C.J.M. Bareilly is directed to take the appellant Zahid into custody forthwith and send him to jail for serving out the sentences awarded by the trial court and affirmed by us. The appeal of appellant Wahid is allowed. He is acquitted of the charges. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. The appeal of Hori Lal has already been abated vide order dated 15.7.2004.
27. Crl. Appeal No. 2408 of 1981 has already been dismissed as abated vide order dated 8.7.2005.
28. Office is directed to send a copy of this order to the CJ.M. Bareilly within two weeks. The CJ.M. Bareilly is also directed to send the compliance report of this order within two months to this court.