JUDGMENT Imtiyaz Murtaza, J.
1. All the above appeals arise out of the judgment and order dated 12.5.2004 passed by Addl. District and Sessions Judge, Court No. 3 Aligarh, whereby the appellant Aqeel Ahmad is convicted under Section 302 I.P.C. and sentenced to death, appellant Irfan; Chaudhary Aleem, Ashiq Ali and Shakir are convicted under Section 302/149 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 2000/-. The appellants are further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for two years.
2. Criminal reference is for the confirmation of, death sentence of appellant Aqeel Ahmad.
3. Brief facts of the case, mentioned in the report lodged by Ahmadur Rahman Sherwani at police station Civil Lines, Aligarh, are that some construction of lane from the crossing of Amirrisha to goshtwali gali was going on from the quota of Khwaja Aleem, M.L.A. A banner was fixed by Vyapar Mandal, Amirnisha and on the banner, name of his son Fayad Khan. Sherwani was mentioned as General Secretary. On 16.12.2001 at about 4 p.m. Shakir, Sabhasad had taken out the banner. He came at the house of informant armed with D.B.B.L. Gun alongwith Aqeel Ahmad who was also armed with a D.B.B.L. Gun, Irfan driver, Chaudhary Aleem, Shakir son of Shabbir and Ashiq Ali. His sons Favad and Shahood Ali Khan were present there and they started abusing them and challenged saying that how he could dare to fix the banner and set the banner on fire. His sons told him that since there was a festival next day and they would talk about it later on. Hearing this, companions of Shakir Sabhasad exhorted and Shakir and Aqeel Ahmad started firing from their Guns which hit both his sons. He alongwith Iqbal Ahmad, Farooq Ahmad, Shah Alam, Jalaluddin, Mohd. Shabir, Maroof Ahmad Khan, Majid Ali Khan, Subhash Chandra and other who were purchasing in the nearby shops came to rescue them and accused persons firing from their country made pistols and guris went away. His younger son Favad Khan died on the spot and injured Shahood died in the Hospital during treatment. Shah Alam had also received fire arm injuries and he was taken to the Medical College. The report was registered at the police station Civil Lines on 16.12.2001 at 6.25 p.m. and the distance of the police station is 1 km. from the place of the occurrence. After the registration of the report, Shri B.K. Tiwari, S.H.O. Civil Lines started the investigation. He recorded the statement of scribe of the report Om Prakash Chaturvedi, informant and Iqbal Ahmad. Thereafter, he reached at the place of occurrence and prepared the site plan on the direction of the informant which is Ext. Ka-21. He had also prepared site plan of the place where the banner was fixed, which is Ext. Ka-22. He had also prepared the recovery memo of the blood stained and 'plain earth and also prepared the recovery memo of empty cartridge 12 bore and one bullet. He had also prepared the recovery memo of half burnt banner, the recovery memos are Ext. Ka-23, 24 and 25. He had recorded the statement of witnesses, thereafter he reached the Medical College and instructed Sub-inspector N.L.Arya to prepare the inquest memo of the deceased persons Favad and Shahood. After the preparation of inquest memos the dead bodies were sealed and handed over to the constables for post mortem examination on 17.12.2001. He recorded the statement of Farooq Ahmad, Jalaluddin, Shakir son of Shabbir, Majid Ali and Iqbal Ahmad. Accused Shakir was arrested and his statement was recorded. After the investigation he submitted the charge sheet against the accused persons which is Ext. Ka-26. On 5.1.2002 statement of Shakir, Sabhasad was recorded and on 10.1.2002 statement of accused Aqeel Ahmad was recorded and they were taken on police remand and on the pointing out of Shakir, Sabhasad a Gun was recovered and recovery memo was prepared which is Ext. Ka-27. On the pointing out of Aqeel Ahmad a Gun was recovered and recovery memo is Ext. Ka-28. On 25.1.2002 a D.B.B.L. Gun No. 17524 was recovered from the shop of Choudhary Gi)in House Arms and Ammunition Dealer, Malviya Market, Aligarh, recovery memo is Ext. Ka-38. A written application was given, by the proprietor of the Gun House Surendra Singh. The gun was deposited by Ashiq Ali, the recovery memo is Ext. Ka-30.
4. After the submission of the-charge sheet the case was committed to the court of Sessions.
5. In order to prove its case, the prosecution examined 12 witnesses: P.W. 1 Ahmadur Rahman Sherwani, informant of the case, P.W. 2 Iqbal Ahmad alias Shambhu, P.W. 3 Maroof Ahmad Khan, P.W. 4 Om Prakash Chaturvedi, P.W. 5 Dr. Naseem Alam, P.W. 6 Dr. Rehan Ahrnadj P.W. 7 Dr. V.K. Singh, P.W. 8 Dr. Paritosh Mohan, P.W. 9 Natthu Lal Arya, S.I., P.W. 10 Parnochar Shri Niwas, Head Constable, P.W. 11 Constable Yogendra Singh and P.W. 12 B.K. Tewari, investigating officer of the case.
6. P.W. 1 Ahmadur Rahman Sherwani has supported the version of F.LR. and stated that he lives in his house situated in Amirnisha Dodhpur. He lives on the first floor and on the ground floor there is a market. A road was being constructed from Amirnisha crossing to Goshtwali Gali from the quota of Khwaja Haleem, M.L.A. There was a banner hoisted on Amirnisha crossing which showed that the road was being constructed from the quota of Khwaja Haleem with the cooperation of Vyapar Mandal. The name of his younger son Favad was also mentioned on the banner as a General Secretary, Shakir, Aqeel, Chaudhary Aleem, Irfan, Ashiq Ali and Shakir Hussain son of Shabbir took out the b :inner arid all of tljem came to his house variously armed. Shakir and Aqeel were armed with D.B.B.L. Gun and rest of the accused were armed with country made pistols. At that time he was present near his house, his sons Favad and Shahodd were also standing there. The accused persons called his younger son Favad and told him that how he dared to fix the banner and as he was the Sabhasad and only his name could be mentioned on the banner, His elder son Shahood told him that next day was Eid and they could talk later on. The accused had set on fire the banner, his children were hardly 10-15 steps away from there. On the exhortation of other accused, Shakir and Aqeel fired from their Guns and his both sons fell on the ground and remaining accused were abusing and firing and thereafter they ran away. He rushed towards his sons. Favad died on the spot and the other son w.as conscious, Both had received fire arm injuries. He took his children to the Medical College. At the time of occurrence, Iqbal Ahmad, Farooq Ahmad, Jalaluddin, Maroof I Ahmad, Mohammad Sabir, Majid Ali and Subhash Chandra and other persons also reached there.Due to the firing of the accused Shah Alam had also received injuries. Saud had also died during the operation, in the medical college. He got the report scribed by Om Prakash Chaturvedi and lodged it at the police station. F.I.R. is Ext.
Ka-1.
7. P.W. 2 Iqbal Ahmad alias Shambhu deposed that his shop Khajan Silk Emporium is situated at Amirnisha market. The occurrence took place on 16.12.2001 at 4 p.m. He was present at his shop and or hearing the noises he came but of his shop and saw that Shakir, Sabhasad and Aqeel Ahmad armed with D.B.B.L. Gun and Shakir, Sabhasad was also carrying a banner. Irfan driver, Ashiq Ali, Aleem Chaudhary and another Shakir were also alongwith them. They came on the road outside his shop. On the Chabutra, in front of his shop Favad Sherwani, Saud Sherwani and their father Ahmadur Rahman were standing. Shakir, Sabhasad was carrying the banner and he set it on fire and told Favad that he was the Sabhasad and his name should have been mentioned on the banner and started abusing Favad and Saud and challenged them that how they dared to fix the banner. Favad and Shahood told him to go as there was festival next day and thereafter they would talk to them. In the meantime on the exhortation of his companions Shakir and Aqeel fired at Shahood and Favad and both of them received injuries and fell on the ground. Apart from Ahmadur Rahman, Jalaluddin, Maroof Ahmad, Farooq Ahmad, Subhash Chandra, Mazhar Ali and several other persons reached there. Thereafter accused persons ran away after firing from their country made pistols. Favad died on the spot and Shahood was taken to the Hospital.
8. P.W. 3 Mahroof Ahmad deposed that occurrence had taken place on 16.12.2001 at about 4 p.m. He had gone to the super market for the purchasing. He heard some noises and saw that Shakir, Sabhasad aiongwith his companions namely, Aqeel Ahmad, Chaudhary Aleem, Irfan driver another Shakir son of Shabbir, and Ashiq Ali were having altercation with Favad and Saud with regard to banner. Shakir, Sabhasad was telling them that this road was constructed due to his efforts and his name should have been on the banner and he took out the banner and set it on fire. Thereafter Shahood and Favad told him that the next day was festival and they could talk about it later on. The companions of Shakir, Sabhasad exhorted to kill them, Shakir and Aqeel had fired from their D.B.B.L. Guns at Favad and Shahood and both of them fell on the ground. He alongwith his brother Farooq Ahmand, Iqbal Ahmad, Subhash Chandra, Shah Alam, Sabir, Jalaluddin, Majid and others came there and the accused persons ran away, firing from their weapons. Favad had died on the spot and during the treatment at Medical College, Shahood had also died. The presence of this witness is quite natural and he had also explained his presence on the spot.
9. P.W. 4 is Constable Om Prakash Chaturvedi. He stated that on 16.12.2001 he was posted as constable clerk at police station civil lines, and he registered the case crime No. 370 of 2001 on the basis of the report of Ahmadur Rahman. He also prepared the chik F.I.R. Ext, Ka-2 and entered in the G.D., copy of G.D. is Ext. Ka-3.
10. P.W. 5. Dr. Naseem Alam, C.M.O. Casuality, J.N. Medical College, Aligarh had medically examined Shah Alam on 16.12.2001 at 4.20 p.m. and noted the following injuries:
1. Lacerated wound 2 cm. x 2 cm. of fire arm on the postero medial aspect of lower part of right thigh, mild oozing of blood, inverted margins, charring around it.
2. lacerated wound 3 cm. x 3 cm., antero of fire arm on the medial aspect of lower part of right thigh, mild oozing of blood, everted margins
3. Tenderness decreased mobility of right knee joint without bony erepitus but irregularity at right medial condyl tenderness present indicative of erosion of right medial condyle.
11. He had also examined Shahood Ali Khan on 16.12.29001 at 4.20 p.m. and noted the following injuries:
1. Lacerated wound 2" x 2" of fire arm on 7tn intarcostal space of left lower chest, inverted margins profuse bleeding, tattooing around it.
2. Lacerated to injury No. 1, inverted margins, active bleeding, tattooing around it.
3. wound 2" x 2" of fire arm on 7th intercostals space just laterally adjacent 3. Lacerated wound, 1.5 cm. x 1.5 cm. of fire arm on right side back in the 8th intercostals space, everted margins little fresh bleeding.
12. The doctor has also stated that the injured persons were brought to the Hospital by Indrajeet Babbar. Injury reports are Ext. Ka-4 and 5. Favad Khan Sherwani was brought dead in the Hospital. He prepared the confidential memo of Favad Khan Sherwani, which is Ext. Ka-6.
13. P.W. 6 is Dr. Rehan Ahmad. On 31.12.2001 he was student of M.D. He had prepared the X-ray report on the basis of X-ray of Shah Alam and he found that lines of cortical out line of medial, condyle of right femur with soft tissue irregularity, which is Ext. Ka-7.
14. P.W. 7 is Dr. V.K. Singh, Pandit Deen Dayal Upadhyay Hospital, Aligarh and he conducted the autopsy on the dead body of Shahood Ali Sherwani on 17.12.2001 at 11.20 a.m. and noted the following ante mortem injuries:
1. A stitched wound 29 cm. long situated vertically over front of abdomen and chest, extending from lower part of left chest 6 cm. below left nipple at 7.O'clock position running down ward upto lower part of Abdomen in about midline having 20 stitches;
2. A gun shot wound of exit 1.5 cm. x 1.5 cm. x cavity deep over back of right chest 7 cm. below inferior angle of right scapula, margin extroverted.
15. On the same day i.e. 17.12.2001 at about 12.30 a.m. he conducted the autopsy on the dead body of Favad and noted the following ante mortem inujuries:
1. A gun shot wound of entry 1.7 cm. x 1.7 cm. x chest cavity deep over back of left upper most part of left arm (left shoulder) 4 cm. below left acromian claviculer joint at 8 O'clock position. No blackening. No tattooing, odour or abrasion present.
2. Multiple lacerated wound (four in number) over front of left shoulder joint ind all cornmun eating to track of wound size varies from 1.2 cm. x 0.8 cm. to 0.7 cm. x 0.2 cm. Extroverted margin all having small pieces of fractured bones.
16. P.W. 8 is Dr. Paritosh Mohan, M.S. General Surgery, J.M. Degree College, Aligarh. He deposed that on 16.12.2001 he was posted as junior resident in J.M. Medical College, Aligarh alongwith Dr. Aqif Khan, Dr. Madhusudar Haivar, Dr. Ajai Jain, Dr. Bipin Chamrvedi. He stated that on 16.12.2001 between 4 to 5 p.m.Shahood was brought by Indrajeet Babbar in the Hospital. He had received fire arm injuries and he was alive. He was recommended for operation. He was operated by Professor, M.A. Khan. He prepared the case sheet of Shahood, which is Ext. Ka-10.
17. P.W. 9 S.I. N.L. Arya stated that on 16.12 2001 he was posted as S.I. police station Civil Lines. He had prepared the inquest report of Favad. He prepared the G.D. entry. The inquest report is Ext. Ka-11 and other papers for post mortem examination, which is Ext. Ka-15. The dead body was handed over to Constable Yogendra and Mordhwaj.
18. P.W. 10 Head Constable Parnochar Shri Niwas stated that on 16.12.2001 he was posted as Head Moharrir, Dodpur. He had prepared the inquest memo of Shahood and other papers were prepared by Sub-inspector N.L. Arya. The inquest memo is Ext. Ka-16 and other papers are Ext. Ka-17 to 20. The dead bodies were sealed and handed over to Mordhwaj and Yogendra.
19. P.W. 11 constable Yogendra Singh stated that on 16.12.2001 Sub-inspector N.L. Arya were also posted there. Shri Niwas had come at Police Station Civil Lines and they had gone to Medical mortuary for the preparation of inquest memo of Favad and Shahood. The inquest of Favad was started at 7.20 p.m. and concluded at 8.30 p.m. S.I. Shri Niwas prepared the inquest of Shahood, which started at 8.30 p.m. and concluded at 9.30 p.m. Both the dead bodies were sealed and handed over to him and constable Mordhwaj for the post mortem examination.
20. P.W. 12 is the investigating officer of the case and after completion of the investigation he has submitted the charge sheet against the accused persons.
21. The case of the defence is of denial and false implication.
22. The Sessions judge after considering the evidence on record convicted the appellants as aforesaid. Shakir, Sabhasad had absconded during the trial and his case was separated.
23. We have heard Sri G.S. Chaturvedi Sr. Advocate and Sri Rajul Bhargawa Advocate Counsels for the appellants and AGA for the State and Sri Satish Trivedi Sr. Advocate and Sri Imranullah advocate Counsel for the complainant.
24. The Counsel for the appellant has challenged the findings of the sessions judge on various grounds.
25. The Counsel for the appellant had challenged the first information report. It is submitted that the report is ante timed and at the time of the preparation of the inquest report the first information report was not in existence, the first information report was not forwarded to the Magistrate as provided under Section 157 Cr.P.C. and also placed reliance on a decision of the Apex Court in the case of Marudunal Augusti v. State reported in 1980 S.C.C. (Crl) 985 wherein it was observed "the entire fabric of the prosecution case would collapsed if the F.I.R. is held to be fabricated or brought into existence long after the occurrence." In support of the argument of ante timing of the report it is submitted that the report was lodged after the death of Sahood Ali, which took place according to doctor Paritosh Mohan, P.W. 8 at 5.58 p.m. The informant Ahmadurrahman Sherwani, P.W, 1 stated that after the death of Sahood Ali he came to his house and prepared the report and thereafter lodged it at the police station. The time of registration of the report is 6.25 p.m. It is submitted that it was not possible for the informant to lodge the detailed report within 27 minutes after the death of Sahood Ali. In our opinion there is no substance in this submission. The distance of the place of occurrence which is in front of the house of the informant and the police station is. only 1 km. and he had covered this distance on a scooter. It is also to be noted that there may be some differences in the timing also. The timings are mentioned as approximations. In the first information report it was mentioned that the time of occurrence was 4 p.m. approximately. P.W. 8 Dr. Paritosh Mohan had also admitted that there can be some variation in the timing of death of Saud Ali. The Counsel for the appellants had also challenged the alleged time of the first information report on the ground that in the G.D. Entry No. 41 dated 16.12.2001 the presence of Shah Alam is also mentioned at the police station along with Ahmadurrahman, Iqbal Ahmad, Farooq Ahmad, Jallaludclin but Shah Alam was not in a position to move at that time. He had sustained serious injuries on his leg. Dr. Paritosh Mohan, P.W. 8 had examined him on 16,12.2001 at 4.20 p.m. (Ext. Kha-1). The medical report shows that the doctor had noted fire arm injury on his leg and also noted tenderness with decreased mobility of right knee joint without bony eruption but irregularity at right medial condyle with tenderness was present indicative of erosion of right medial condyle. It is vehemently argued that after sustaining such injuries it would not have been possible for Shah Alam to reach the police station alongwith the informant at 6.25 p.m. We do not find any substance in this submission also because there is nothing on the record to suggest that he was not in a position to move, nor any question was asked to clarify from the doctor whether he was in a position to move or not. How Shah Alam could reach the police station can be answered by Shah Alam alone but he was not examined in this case therefore no adverse inference could be drawn. The hypothetical question of the Counsel can be answered hypothetically that if Shah Alam can reach the medical college after sustaining such injuries he could also reach the police station in the same manner. It is also to be rioted that G.D. was prepared in the official discharge of duty and there is a presumption that official acts have been regularly performed.
26. The next submission of the Counsel for the appellant is that at the time of the inquest report the first information report was not in existence and in support of this submission he argued that the name of the informant was not mentioned in the inquest report. The evidence on the record shows that P.W. 10 Shri Niwas stated that on 16.12.2001 he was posted as Moharrir at Dodpur outpost He had gone for the preparation of the inquest of the dead body of Saud Ali Sherwani alongwith S.I. N.L. Arya. The statement of S.I. N.L. Arya shows that he had received the chik at medical college prior to preparation of inquest report. The inquest started at 8.35 p.m. and concluded at 9.30 p.m. It is also necessary to mention that in the inquest report there is no column to mention the name of the first informant. In the inquest; report there is column only to mention the name of the person who had firstly informed about the recovery of the dead body. If the dead body is recovered on the pointing out of the accused then name of the accused is mentioned in that column. In the instant case information about the death of the deceased was communicated by the. medical college to the Dodpur outpost. The name of a driver Shamim Akhtar of G.N. Medical College, who had informed about the death of the deceased at Dodpur outpost is mentioned. Therefore, the name of the informant was rightly not mentioned in the column of the inquest report.
27. The next submission of appellants' Counsel is that the provisions of Section 157 Cr.P.C. are not complied with. It is submitted that immediate forwarding of the report is the mandate of law and be placed reliance'on the observation of the Apex Court in the case of Ravi Kumar v. State of Punjab reported in (2005) 9 SCC 315 wherein it was observed "sending of the copy of the special report to the magistrate as required under Section 157 Cr.P.C is the only external check on the working of the police agency, imposed by law which is required to be strictly followed.
Another decision relied upon is Mehraj Singh v. State of U.P. reported in 1994 SCC (Crl.) 1390 wherein it was observed With a view to determine whether the FIR was lodged of the time It is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate.
28.The decision of Mehraj Singh (supra) was again, considered in Thanedar Singh v. State of M.P. reported in 2002 SCC (Crl.) 153 29. In another decision of the Apex Court Rajeevan v. State reported in 2003 SCC (Crl.) 751 it was observed "This Court in Marudanal Augusti v. State of Kerala while deciding a case which involves a question of delayed dispatch of the FIR to the Magistrate, cautioned that such delay would throw serious doubt on the prosecution case, whereas in Arjun Marik v. State of Bihar it was reminded by this Court that: (SCC P. 382, para 24) The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word 'forthwith' occurring in Section 157 CrP.C. which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation.
30. The AGA, on the contrary placed reliance on a latest decision of the Apex Court Sunil v. State of Rajasthan reported in 2005 SCC (Crl.) 1230 wherein it is observed "Great stress was laid on the alleged delay in dispatch of the FIR to the llaka Magistrate. FIR was recorded on 29-10-1999 at about 11,00 a.m. and reached the Magistrate on 30-10-1999 at about 12 noon. It cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate concerned, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in investigation were taken. Therefore, the plea that there was no FIR in existence at the relevant time has no substance.
31. The Sessions Judge had wrongly mentioned in the judgment that the investigating officer had admitted that special report was not sent directly to the magistrate. The investigating officer had stated that he had no knowledge that the special report is sent directly to the magistrate and he stated that the special report is sent to magistrate through C.O.A perusal of the chik Ex.ka2, which bears the signature of the C.J.M, shows that it was received by him on 20.12.01 If the investigating officer fails to comply with the statutory provision of sending the F.I.R. forthwith to the nearest Magistrate, no benefit can be given to the accused for his lapses.
32. The Apex Court in various decisions has held that lapses on the part of the investigating officer do not affect the credibility of the eye witnesses. The Apex Court in the case of Ram Bali v. State Of U.P. has held as under:
In the case of defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P.)
13. In Paras Yadav v. State of Bihar it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined dehors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the courts in finding out the truth; if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.
14.As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh. As noted in Amar Singh case it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the 10 cannot affect the credibility of the prosecution version.
33. The eyewitness version in this case is furnished by three eye witnesses. P.W. 1 Ahamuddurahman, father of both the deceased. He had described the prosecution case. His presence at the spot was quite natural. He was subjected to extensive cross examination but nothing could be elicited to doubt his credibility or his presence at the alleged time of occurrence. He had also lodged the prompt first information report which contains the time, place of occurrence, motive and manner of crime. P.W. 2 Iqbal Ahmad @ Sammu had also supported the testimony of P.W. 1 Ahamuddurahman Sherwani. He had a shop in the Ameer Nisha Super Market which was the place of the occurrence. He had also described the prosecution case and there is nothing in his testimony to doubt his credibility. P.W. 3 Mahroof Ahad Khan had also supported the prosecution case. He had explained his presence. His house is about 4 Kms. from the place of occurrence. All the eye witnesses were subjected to extensive cross examination and they all withstood the test of cross examination and nothing could be elicited to discredit their testimony. The Sessions Judge had rightly relied upon their testimonies.
34. The eyewitness account finds full corroboration from the medical evidence. The medical evidence shows that Saud Sherwani was medically examined on 16.12.2001 at 4.20 P.M. which also supports that the injured was brought to the hospital after the occurrence and they had received injuries prior to 4.20 P.M. The prosecution case is that the deceased and injured had received fire arm injuries and this finds corroboration from the medical examination report as well as post mortem report. The prosecution case also finds corroboration from the investigation. The place of the occurrence is fixed by the recovery of blood stained earth, empty cartridges and half burnt banner. The place of the occurrence is also not challenged by the defence.
35. The Counsel for the appellants has challenged that there was no such motive on the part of the appellants to commit the offence. According to the first information report there was no such prior enmity between the deceased and the accused. The accused were annoyed because on the banner name of Fawad Khan Sherwani as General Secretary was mentioned. The absconded accused Sakir was Sabhasad of the area and his name was not mentioned in the banner. This had annoyed them and they took out the banner and came to the house of the deceased and set the banner on fire, and thereafter when the deceased had requested them to talk with them after the festival, the occurrence took place. The Apex Court in the case of Balram Singh v. State of Punjab (2003) 11 SCC 286, at page 290 :
If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak. In this case the prosecution has pleaded that there was an altercation between the two families a few days before the incident, and it is because of the said altercation the incident of 5-5-1990 had occurred in which one person lost his life and two persons were seriously injured and if the evidence of the said injured witnesses is to be accepted then the existence or nature of motive would hardly matter.
36.It is also relevant to mention here that nothing has been suggested why: the informant is falsely implicating the accused persons leaving the actual assailants. No motive for false implication is elicited from him.
37. The Counsel for the appellant has challenged the presence of the informant on the ground that in the medical college the name of the informant was not mentioned as a person who had brought the injurea to the medical college. The name of one Idra Jeet Babbar was mentioned as a person who had brought the deceased to the hospital in injured condition. It was contended that if the informant was present, his name should have been mentioned in place of Indrajit Babbar. The informant's son was brought to the medical college in a serious condition and he must be disturbed and his prime importance must have been to give proper medical aid. It is not expected that informant will be interested in furnishing the information to the doctor who had prepared the medical examination report. To infer the absence of informant from the scene of occurrence only because his name has not been mentioned by the doctor in the medical register would be a most illogical inference. The presence of the witnesses is; to be judged on the credibility and reliability of their testimony.
38. It is further contended on behalf of the appellants that the actual time of occurrence was changed by the prosecution. In the medical examination report of Shah Alam it is mentioned that he had received injuries at 3,30 P.M. P.W. 5 Dr. Naseem Alam had deposed that he had medically examined Shah Alam and Saud Ali'at 4.20 P.M. In our opinion, there is no such contradiction to show that occurrence had not taken place at the alleged time. It is also to be noted that prosecution is not gaining anything by changing the time from 3.30 P.M. to 4.00 P.M. There is no substance in the, submission of the Counsel for the appellants.
39. The Counsel for the appellants has further submitted that the non examination of Shah Alam shows that prosecution is not producing the independent witnesses. The prosecution on 13.11.2002 had moved an application (paper No. 49-Ba) in which it was.stated that Shah Alam, accused and they do not want to give the evidence for the prosecution and request was made for their discharge. The said application was allowed. In such circumstances non examintion of Shah Alam does not help the accused and no adverse inference can be drawn against the prosecution.
40. Lastly it is contended on behalf of Counsel for the appellants Irfan Chowdhary, Saleem, Shakir S/O Shabbir and Ashiq Ali submitted that the role of them is only of exhortation. It is further contended that the common object of unlawful assembly was not to commit: the murder of the deceased. The only object to remove the banner and reprimand the deceased. It is further contended that the trial court, had acquitted the appellants under Section 435 IPC. The other accused who had not fired cannot be held liable under Section 302 IPC with the aid of Section 149 I.P.C. In support of submission reliance was placed on the decisions of the Apex Court Baladin and Ors v. State , Mizaji v. State of U.P. , Shambhu Nath Singh v. State of Bihar , Masaltui v. State , Maiyya Din v. State 1973 Criminal Law Journal 1203 (Allahabad), Lalji v. State , Ram Anjor v. State , Santosh v. State (Paragraph 8), Fattah v. State and Lalji v. State of U.P. (paragraph 8-15).
41. The Counsel for the State placed reliance on the decisions of the Apex Court in Sunil Kumar v. State of Rajasthan reported on 2005 SCC Criminal 1230, Charan Singh v. State of U.P.2004 (49) ACC page 4 (paragraph 12, 13, 14) Dani Singh v. State of Bihar reported in 2004 49 ACC 112, State of Maharastra v. Kashi Rao reported in 2003 (47) ACC 1136 (para 9-12), Lok Manshah v. State of West Bengal 2001 42 ACC 1039 (para 21-23), Nagarjit Ahir v. State of Bihar .
42. All the decisions cited by the Counsels for tl|e parties are about the applicability of Section 149. The pivotal question is the applicability of Section 149 IPC. The said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or, design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist, only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their cornmen object may vary not only according to the 'information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly. In the case of Sunil Kumar v. State of Rajasthan , the Apex Court had observed The "common object" of an assembly is; to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action to be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
43. Section 149 IPC consists of two parts, The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be held that the offence was such as the members knew was likely to he committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the abject desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at the time of or before or after the occurrence. The word "knew" used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part; but offences committed in prosecution of the. common object would be generally, if not always, be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object.
44. In the instant case it has been established by the evidence of the eye witnesses that all the accused came together, they pulled down the banner reached at the house of the deceased, set on fire the banner on the exhortation of others two persons had fired and thereafter other accused had also fired and facilitated escape from the crowded market place and all ran away. The role of Irfan, Chaudhary Aleem, Ashiq Ali and Shakir is mentioned in the first information report and corroborated by the eye witness account. The firing by other accused is also corroborated by the recovery of empty shells of the bullets from the place of the occurrence. The other accused who are alleged to have fired at the deceased were armed with Gun. The acquittal of the appellants under Section 435 I.P.C. is on technical ground. The Sessions Judge had not acquitted appellants under Section 435 I.P.C. on the ground that no offence is made out. The acquittal is on the ground that the ownership of the banner was not claimed by the informant nor Vyapar Mandal Amir Nisha was examined to claim the ownership of the banner. Even otherwise the offence alleged is covered under second part of Section 149 I.P.C. The facts and circumstances of the case unequivocally proved the existance of the common object of such persons forming the unlawful assembly and two persons are done to death. The Sessions Judge has rightly convicted all the appellants, namely, Irfan, Chaudhary Aleem, Ashiq Ali and Shakir under Section 302 readwith 149 I.P.C. We also concur with the findings of the Sessions Judge.
45. Lastly, the question that arises for serious consideration is whether imposition of death penalty of Aqeel Ahmad in the facts and circumstances of the case is justified?
46. Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
47. The Sessions Judge had sentenced to death Aqeel on the ground that on a trivial matter two persons done to death in the month of Ramjan. We are not inclined to accept the justification for imposing extreme penalty of death. We are not oblivious to the fact that it is a case of double murder in the broad day light but in our opinion ipso-facto that would not be a ground for confirming the death sentence of appellant.
48. The Apex Court in the case of Ram Pal v. State of U.P. 2003 (47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.
49. Compassion in sentencing is also a key iactor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.
50. Considering the over all circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.
51. We therefore, reduce the sentence of death of the appellant Aqeel to imprisonment for life.
52. For the reasons stated the above appeals are decided as under:
1. Crl. Appeal No. 2630 of 2004 (Aqeel Ahmad v. State) is dismissed with the modification that the conviction of the appellant is maintained but the sentence of death is reduced to imprisonment for life. The appellant is in jail. He shall be kept there to serve out the sentence modified by us.
2. Crl. Appeal No. 2593 of 2004 (Ashiq Ali and Irfan v. State) is dismissed. The conviction and sentences passed by the trial court against the appellants are affirmed. The appellants are on bail. C.J.M. Aligarh is directed to take the appellants into custody forthwith and send them to jail foe serving out the sentences awarded by the trial court and affirmed by us.
3. Crl. Appeal No. 2590 of 2004 (Mohammad Shakir and Chaudhary Aleem v. State) is dismissed. The conviction and sentences passed by the trial court against the appellants are affirmed. The appellants are on bail. C.J.M. Aligarh is directed to take the appellants into custody forthwith and send them to jail for serving out the sentences awarded by the trial court and affirmed by us.
53. Criminal reference for confirmation of death sentence of appellant Aqeel is also rejected.
54. Office is directed to send a copy of this order to the C.J.M. Aligarh within two weeks for necessary compliance and the concerned C.J.M. shall send his compliance report to this court within a month.