Allahabad High Court
Bashir And Another vs State Of U.P. on 17 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 825, 2019 (4) ALJ 540
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 1 Judgment reserved on 17.4.2019 Judgment delivered on 17.5.2019 Criminal Appeal No. 2421 of 1985. Bashir & another vs. State of U.P. Hon'ble Ramesh Sinha, J.
Hon'ble Dinesh Kumar Singh-I, J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. The present appeal has been filed by two accused-appellants out of which appellant no. 1 Bashir son of Sri Murli died during the pendency of appeal. The appeal on his behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 13.9.2018 and the present appeal survives with respect to appellant Afsar son of Roab Sher only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant.
2. The present appeal has been filed by the appellant against the judgment and order dated 29.7.1985 passed by Ist Additional Sessions Judge, Farrukhabad in S.T. No. 364 of 1984 convicting and sentencing the appellant under section 302/34 I.P.C. to undergo life imprisonment.
3. The prosecution case in brief is that an F.I.R. was lodged by the informant P.W. 1 Neksu at police station Kampil against two accused, namely, Bashir and Afsar stating that on 20.3.1984 he along with his brother Ali Mohammad and one Kallu of his village had gone to village Pankhiya Nagla to see the Shisham tree and when they were returning to their village then at the outskirt of village Iklahra where on either side of the road which run from West to East there were fields of one Niwazi. He stated that quite close to the field belonging to Niwazi on the Southern side of the road there was field of Ali Mohammad in which there was a Rahat and a well. Ali Mohammad was a little ahead of him and Kallu and when they were near the field of Niwazi and the Rahat at about 2 p.m. in the afternoon both the accused persons, who had been lying ambush in the field of Niwazi came out with country made pistols in their hands and fired at Ali Mohammad, who tried to run away but fell down in other field of Niwazi towards North of the road in which Barley crop had been standing. Both the accused persons went near Ali Mohammad and again fired at him with their pistols saying "we have taken the revenge today". Thereafter, both the accused ran away towards the North. They were chased by the witnesses upto some distance but none of them could be apprehended.
4. Prior to 3-4 years of the present incident, the police had arrested accused Bashir along with country made pistol and since then the accused Bashir used to bear enmity with his brother Ali Mohammad. Accused Bashir was having relations with one Manohar of his village, who was a criminal. He stated that because of inimical relationship with his brother, the two accused with a conspiracy of Manohar, have committed murder of his brother Ali Mohammad. It was stated by him that the dead body of his brother is lying at the spot and near the dead body, he has left his family members and other persons of his village, who were present there and prayed that necessary action be taken against the accused persons.
5. The F.I.R. was lodged by the informant after getting it written by one Murtaza Ali. On the basis of the said written report (Ext. Ka. 1) submitted by the informant Neksu which he got scribe by Murtaza Ali, a chik F.I.R. (Ext. Ka-3) was prepared at police station Kampil. The information of the same was also endorsed in G.D. No. 16 copy of which was marked as Ex. Ka-6 and F.I.R. was registered as case crime no. 55 of 1984 under section 302 I.P.C. (Ext. Ka-3). The Investigating Officer Ram Autar Singh (P.W. 7), who was entrusted with the investigation of the case, reached at the spot immediately at about 6 p.m. He prepared the inquest report of the deceased (Ext. Ka-5) and prepared photo nash, challan nash (Exts. Ka-7 and 8) and wrote letters to Reserve Inspector and C.M.O. for post mortem which were marked as Exts. Ka-9 to 11. He prepared the site plan of the place of occurrence (Ext. Ka-15) and took in his possession the blood stained and simple earth, shoes put on by the deceased and a belt of cartridges found at the place of occurrence and prepared its recovery memos which were marked as Exts. Ka-12 to 14. The post mortem on the dead body of the deceased was conducted by Dr. S.C. Gupta (P.W. 4), who proved the same as Ext. Ka-2. After recording the statements of the witnesses and completing all other formalities the Investigating Officer concluded the investigation of the case and submitted charge-sheet (Ext. Ka.16) against the two accused persons before the competent court.
6. The trial court framed charges against the two accused persons, who in their statements recorded under section 313 Cr.P.C. have denied the charges and pleaded not guilty stating that they have been falsely roped in the present case due to animosity. In defence they submitted that the deceased Ali Mohammad was killed at some point of time in the night in his field near the place of occurrence when he was keeping watch over his crops. According to the suggestion put forward by the defence, one Jauhari Kisan belonging to the gang of notorious dacoit Mahabira was killed in a fake encounter by the police with the help of Ali Mohmmad-the deceased and his three companions, namely, Mukut, Babu and Ram Sanehi. The gang of Mahabira decided to take revenge and killed the three companions of Ali Mohammad one by one. In a bid to kill Ali Mohammad, they incidentally killed his brother Ali Mulla thereafter finding an opportunity they killed Ali Mohammad too in his own field.
7. The prosecution in support of its case examined P.W. 1-Neksu-the informant of the case, P.W. 2 Kallu, who is said to be the eye witness of the occurrence, P.W. 3 Murtaza Ali-Scribe of the F.I.R., P.W. 4 Dr. S.C. Gupta, who conducted the post mortem of the deceased, P.W. 5 Head Constable Ram Karan, P.W. 6 Constable Sobran Singh and P.W. 7 Ram Autar Singh.
8. The accused did not examine any witness in their defence.
9. P.W. 1 Neksu, who is the informant of the case and real brother of the deceased was examined by the trial court and in his deposition before the trial court, he has stated that he along with his brother Ali Mohammad-the deceased and one Kallu of his village were going back to their village Iklahra from village Pankhiya Nagla where they had gone to cut some Shisham trees and at two p.m. when they reached near the Rahat of Niwazi, the accused Bashir and Afsar came out from the field of wheat with country made pistol in their hands and both the accused fired at the deceased Ali Mohammad due to which he received injuries on his person and when he tried to run away both the accused assaulted him with lathi on his feet on account of which he fell down and thereafter again they fired at him. On the alarm raised by him and other villagers, both the accused fled away towards North. His brother Ali Mohammad died at the spot within 5-6 minute. The witness Munshi had also arrived at the spot. He deposed that prior to 5-6 years of the incident, the deceased Ali Mohammad had got the accused Bashir arrested by the police for keeping an illegal gun on account of which the accused Bashir was keeping ill-will with the deceased. The witness stated that he does not know whether accused Bashir was convicted in the said case or not. On the dictation of the said witness, the report of the incident was written by Murtaza Ali in the village in his drawing room (Baitakh). He proved the written report as Ext. Ka-1 which he submitted at the police station. Munnauar, Alla Sher etc. also went along with him to the police station. At the time of writing of the report of the incident, he had kept the dead body of the deceased out side of the drawing room. The Station Officer had arrived and prepared the inquest report and other police papers. At that time, the dead body of the deceased was lying near the Rahat of Niwazi.
10. In his cross examination, the witness has stated that in the case in which accused Bashir was arrested with a gun his brother Ali Mohammad was a witness and he is not aware of the fact whether his brother had deposed in the said case or not. He admitted that Sheru and Liyaqat were real brothers. The sister of accused Afsar was married to Sheru and his own sister was married to Liyaqat but he denied that there had been any quarrel or dispute between the wives of Sheru and Liyaqat nor any quarrel between Liyaqat and Sheru. He also denied any dispute with accused Bashir on account of the boundary of fields belonging to him and Bashir. However, he admitted that Manohar had killed his brother Alimulla about 4 or 5 years prior to the present incident. He was not aware of the fact whether Jauhari Kisan of his village was killed in an encounter by the police and had denied that his brother Ali Mohammad, Mukut and Babu Khan were also present at the time of encounter along with the police. Though he admitted the killings of Mukut, Ali Mulla and Babu Khan but denied that they were killed by the gang of Jauhari Kisan as vendetta. He also denied that his brother Ali Mohammad and his nephew Riyasat and Kallu were accused for murdering one Ram Sanehi. However, he admitted that his sister's husband Liyaqat was an accused in a dacoity committed in the house of one Parasram. He further shows his ignorance about the fact that the deceased Ali Mohammad was a police witness in several cases. He stated that the accused belong to a gang of Manohar and they were in his gang for the last 6-7 years. The Investigating Officer has recorded his statement under section 161 Cr.P.C. in which he had told him that Manohar had conspired the murder of the deceased. The place of occurrence is about one mile from the village. There is no abadi between the village and the place of occurrence. Village Pankhiya Nagala is about one and half kms. from the place of occurrence and in between there is Abadi of Shekhpur which is at a distance of one km. from the place of occurrence and except the same there is no Abadi. Towards the North of place of occurrence till river Ganga, there is no Abadi. Towards North and South there is Chak of Niwazi in between there is way. In the Southern side of the Chak of Niwazi there is Chak of Ali Mohammad. The Chak of Ali Mohammad is about 50 paces from the place of occurrence where is his Rahat and there is no Madhhaiya and according to the information of the witness no one stays at the field for keeping watch. The trees at Pankhiya Nagla were not cut down on the said date. He stated that earlier it was wrongly stated by him that they were returning after cutting the trees for which he cannot tell the reason. He denied the suggestion that in order to establish his presence at the place of occurrence, he has deposed about the cutting of trees. He wrongly stated that at the time of incident, the crops of wheat was half ripe and it was at waist height. He had seen the accused coming out from the field of Newazi and in the said field there was no crop of peas and barley but there was wheat. At the Southern side of the field there was crop of Barley and somewhere some peas were also there. The deceased was murdered at the Southern side of the said field. When he saw the accused for the first time in the field, they were at a distance of 20 paces inside the field. They were coming through the way and the accused came out from the field and on the way they fired at that time the witness was at a distance of 50 paces towards West. The deceased Ali Mohammad was at a distance of 2-3 paces towards North of the accused when they had fired. The deceased Ali Mohammad was at Dadhe. When the fire was shot, the deceased Ali Mohammad was facing towards East. At the beginning, one shot was fired at Ali Mohammad and he denied that two shots were fired in the beginning and thereafter several shots were fired. He stated that initially, he has stated in his statement that one shot was fired, was because of his weak memory and it is quite possible that two fires could have been shot and he had heard only one of them. He denied that the accused have shot the deceased from front. He had not given any such statement to the Investigating Officer. The first shot which was fired was hit at the shoulder of the deceased and thereafter within a minute several shots were fired. At that time, Ali Mohammad step ahead towards the Northern field of Newazi. He had entered in the field upto 15-20 paces. The accused also chased him and entered into the field and when first fire was shot at him his face was towards East and when second fire was shot his face was towards East and the accused took him towards South. He cannot tell where the deceased received injuries of three shots fired at him. After receiving the injuries, he could not fled away. When the three fires were shot then Kallu ran in another field in the West. The deceased had fallen within 15-20-25 paces inside the field. The dead body of the deceased was brought to the house of the witness from the place of occurrence after Sun set. The report of the incident was got written by him at his house prior to bringing the dead body. He denied the suggestion that the report was lodged after the dead body of the deceased was brought to the house. He denied at at the time of lodging the report, the dead body was in front of drawing room and he had wrongly given the said statement. He denied the suggestion that after the arrival of the Station Officer, the report was lodged with his consultation. He further denied the suggestion that he was not present at the place of occurrence and also denied that because of enmity the name of accused were falsely implicated after consultation with the police.
11. P.W. 2 Kallu in his deposition before the trial court though has supported the prosecution case but has deposed differently to that of P.W. 1. He has stated that he and Ali Mohammad were returning to village Iklahra from Pakhiya Nagla where they had gone to cut Shisham trees when the occurrence took place in between the fields of Niwazi near the well and the Rahat. He stated that Ali Mohammd was ahead of him at a distance of 2-4 paces and both the accused came from behind and fired at Ali Mohammad which hit him and he turned around and saw that both of them were carrying country made pistol and he raised alarm and ask what was going on then Ali Mohammad started running and both the accused chased him. The witness further stated that he ran for his life and stopped at a distance of about 50 paces in the field of one Ali Murad and from there he heard three more shots. The witness went on to say that after half an hour when he went to the place of occurrence, he found Ali Mohammad lying dead near the well and Rahat in the field of Newazi. He further stated that at the time of incident along with him and Ali Mohammad neither his brother Neksu nor any other person were present there.
12. In his cross examination, he has admitted that on the date of incident, in village Pankhiya Nagla trees of Shisham were not cut as they could not get a Carpenter. He denied the suggestion that Rahat of Newazi is out side towards North and his Rahat is inside the Chak and the length of the Chak of Newazi towards the North to South is 100-150 yards and from East to West about 70-80 yards and when the fires were made at Ali Mohammad, he was at a distance of 20 paces from Rahat. His statement was recorded by the Investigating Officer and when the fires were shot at Ali Mohammad, the accused were at a distance of 4-6 paces behind him. The first shot was fired at Ali Mohammad on his left shoulder, who on receiving the injury ran towards the North. The accused also ran behind him and thereafter the witness also run away. He did not see Munshi Singh at the place of occurrence nor heard his voice and after half an hour when he reached at the place of occurrence no one was present there. When after reaching at the village, the told about the incident to the villagers then the villagers reached at the place of occurrence. The dead body of the deceased Ali Mohammad was lying at the place of occurrence. The Station Officer had arrived at the place of occurrence in the evening between 4:30 to 5:00 p.m. and had prepared the inquest report and other police papers. After sealing, the dead body was brought in the village in front of Chaupal of Neksu in a vehicle in which it was kept lying. The accused were not there. Murtaza was present there. The Station Officer was also present there. He did not see Murtaza writing the report. He was ignorant of the fact that the Station Officer had brought Neksu to the police station or not. He stated that Qaisar is his son and there was a scuffle between his son and one Akbar, who is the brother of accused Afsar in which Akbar and his son Qaisar received injuries of lathi. His daughter is married to Noor Hasan, who is related to accused Afsar. He denied that he had stopped his daughter from going with Noor Hasan. He denied that Afsar had forcibly taken his daughter on account of which there was some quarrel between him and accused Afsar. He had purchased field of Dad Khan and given it to Afsar because of relationship with him. He had further stated that he had not given him Rs. 412/- which he did not return but he denied that because of which he was annoyed with Afsar. He stated that there was a scuffle between his son Nanku and Ahmad son of Kashmir but no one has received injuries. He stated that he heard that Jauhari Kisan has been killed in a police encounter. He also was not aware of the fact that Mukut, Babu and Ali Mohammad had helped the police in the said encounter. Ali Mulla and Mukut have been murdered and he heard that both them were murdered by the gang of Mahabira. He was not aware of the fact whether Jauhari Kisan was in the gang of Mahabira. Ram Snehi Baniya of Bhawalpur has also been killed and no report was lodged against Ali Mohammad, Riyasat and others. In the village, dacoity had taken place in the house of Parshuram in which report was lodged against Ali Mohammad and Liyaqat or not he did not remember as the incident had taken place 15-16 years ago. The brother-in-law of Afasr, namely, Sheru resides in his village and he is not aware of the fact whether there was a quarrel between Liyaqat and Sheru. He denied that Ali Mohammad was killed in the evening in his field near Rahat. He further denied that the information about the incident was given to him on the next day and he also denied the suggestion that he in collusion with Neksu and Munshi has lodged a false report against the accused.
13. P.W. 3 Ali Murtaza has stated before the trial court that on 20.3.1985, he on the dictation of Neksu had written a report (Ex. Ka.-1) and he had written what was dictated to him by Neksu and after reading and hearing the same he had affixed his thumb impression. The written report was in his hand writing and signature and he has proved the same as Ex. Ka. 1.
14. In his cross examination, he has stated that a report (Ex. Ka-1) was written in the drawing room of Neksu and when he was writing the report, the dead body was kept in front of the drawing room and dead body was brought before the drawing at 3-3:1/2 in the evening in his presence. The Station Officer had come when the dead body was brought. The report was written at about 7-8 p.m. in the night and the Station Officer while writing the report was consulting with the family members of Neksu. The said witness was declared hostile by the prosecution.
15. In his cross examination by the prosecution, he denied that he had written the report at 2 p.m. in the afternoon. He further denied that the Neksu had dictated the report. He further denied the suggestion that in collusion with the accused persons, he is falsely deposing.
16. P.W. 4 Dr. S.C. Gupta has stated before the trial court that on 21.3.1984, he was posted as Medical Officer at District Hospital Fatehgarh and he was on duty. He conducted the post mortem of the dead body of the deceased Ali Mohammad at 3:15 p.m. which was brought by Constable No. 607 Soobaram Singh, who had identified the dead body along with Constable No. 467 Ramesh Chandra and following injuries on his person:-
"1. Gun shot wound of entry 2-1/2 cm.x 2 cm.x stomach cavity deep on the right side upper part of the stomach 27 cm. above and lateral to the umbilicus with a number of wound of pellets entry in an area of 8 cm. x 6 cm around it. The direction of the wound was from right to left.
2. Gun shot wound of entry 0.2 cm. x 0.2 cm. skin deep on the back of the right elbow.
3. Two gun shot wounds of entry 10 cm. apart from each other on back of the left fore arm 0.2 cm. x. 0.2 cm and 1 cm x 0.2 cm. both skin deep.
4. Four gun shot wounds of entry in an area of 7 cm. x 4 cm. on the back 1/3rd of the left arm 2 to 4 cm. apart from each other.
All the wounds were skin deep.
5. Multiple gun shot wounds of entry in an area of 28 cm. x 22 cm. on the upper and middle part of the back, skin to muscle deep and 0.2 cm. x 0.2 cm. to 1 cm. x 0.2 cm. in measurements. The direction of the wounds was from back to front.
6. Gun shot wound of entry 0.7. cm. x 0.5 cm. x chest cavity deep on the right side back 3 cm. away and inside from the shoulder. The direction of the wound was from back to front and upward to downward.
7. Lacerated wound 4 cm. x 1 cm. x muscle deep on the back of the head."
17. The internal examination revealed the that the lungs and their membrane were lacerated at several places. Heart was empty and heart and its membrane were lacerated. There was 1-1/2 litre of liquid mixed with blood in the chest cavity. The membrane of the stomach was lacerated and in the abdominal cavity one litre of liquid mixed blood and fecal matter was present. There was 200 grams of semi digested food in the stomach and fecal mater in the large intestines.
18. Liver was also lacerated.
19. In the opinion of the doctor the death had occurred sometime at 2 p.m. on 20.3.1984 due to excessive bleeding and shock caused by the ante mortem injuries detailed earlier.
20. A bullet from the chest cavity 18 pellets embedded in the back and 12 pellets from the abdominal cavity were found by the doctor and were taken out. He also took a shirt, a vest and the dhoti, an underwear and the Angochha from the dead body. He kept all these articles in two different sealed bundles and sent to the S.S.P. Fatehgarh through the constable.
21. According to the doctor all the injuries except injury no. 7 were caused by some fire arm and injury no. 7 either by some blunt weapon or by a fall.
22. In his cross-examination, the said witness has stated that the duration of death on either side would be from 5-6 hours. The deceased would have taken food 4-5 hours prior to death. He cannot tell whether both the rifle and gun were used to cause injuries to the deceased or not. He cannot tell about the weapon.
23. P.W. 5 Head Constable Ram Karan has stated before the trial court that on 20.3.1984, he was posted as Head Moharrir in police station Kampil. On the said date, the informant Neksu had given a written report which was written by Murtaza Ali in the police station to him on the basis of which he prepared the chik F.I.R in his hand writing and signature which is on record and proved the same as Ex. Ka-3. The endorsement of the same was made in the G.D. No. 26 at 15:45 house on the same day. He has proved the same in his writing and signature as Ex. Ka-4. He denied the suggestion that in the G.D., the time of the report had been changed by him. He was unaware of the fact that prior to the present incident any person by the name of Jauhari Kisan was killed in a police encounter and he was not posted there at that time and no such fact was mentioned in the report and it was stated that the deceased Ali Mohammad had helped the police in the encounter of Jauhari.
24. P.W. 6 Sobran Singh has stated that he was posted as Constable on 20.3.1984 at police station Kampil and on the said date he had handed over the dead body of the deceased Ali Mohammad along with Constable Rakesh Chandra Khare in the evening at about 7:30 p.m. at Fatehgarh District Hospital for post mortem to the doctor which was in a sealed condition along with other police papers and after post mortem, the clothes which were sealed in a bundle and one sealed envelope in which pellets were kept had submitted the same at police station and till that time, the dead body was in his custody and he did not allow any persons to see or touch it.
25. He in his cross-examination has stated that no one had told him that the deceased had helped the police in the encounter of Jauhari Kisan and the Station Officer Narain Jatav was not the Station Officer at police station Kampil during his tenure.
26. P.W. 7 Ram Autar Singh has stated that on 20.3.1984 he was posted as Station Officer of police station Kampil and in his presence on the said date at about 15:45 p.m., the informant Neksu has submitted a written report on the basis of which a case was registered and the investigation was entrusted to him. He had recorded the statement of the informant at the police station and on reaching at the place of occurrence he had taken over the custody of the dead body of the deceased Ali Mohammad and conducted the panchayatnama. He got the panchayatnama of the dead body of the deceased done by S.I. R.K. Singh. Thereafter sealed the dead body of the deceased and sent the same along with other police papers for post mortem through Constable Soobran Singh and Constable Rakesh Chandra Mishra and he has proved the panchayatnama as Ex. Ka-6. Photo nash, challan nash, letter to R.I. and letter to C.M.O. was prepared by S.I. R.K. Singh before him in his hand writing and signature at the place of occurrence. He has proved the same as Exts. Ka-7 to 11. He has also taken the shoes of the deceased, blood stained and plain earth and a belt of cartridges and got the recovery memo of the same prepared by S.I. R.K. Singh in the presence of the witnesses and got their thumb impression and proved the same as Exts. Ka-12, 13 and 14. At the pointing out of the informant, site plan of the place of occurrence was prepared by him which was marked as Ex. Ka-15. He made a search of the accused but they could not be apprehended. He recorded the statements of Kallu, Munshi Singh and other witnesses of recovery on 30.3.1984. He got the place of occurrence inspected by the Circle Officer. The accused surrendered on 30.3.1984 and he recorded their statements in jail on 4.4.1984. After completing the investigation, he submitted charge-sheet on 5.5.1984 in his hand writing and signature which is marked as Ex. Ka-16. The criminal antecedents of accused Bashir was also enclosed by him along with the charge-sheet in his hand writing and signature. The accused Bashir was a history sheeter and his history sheet was opened at police station Kampil and beside the same there were five other criminal cases against him. The blood stained and plain earth Exts. 1 and 2 was proved by him. The clothes of the deceased such as Baniyan, dhoti, Kameez, Aungauchha and Rumal were marked as Exts. 5 to 9. All the articles which were kept in a sealed cover were opened in the Court. He reached the place of occurrence on 20.3.1984 at about 5 p.m. in the evening and remained there at about 8 p.m. and at 7:30 p.m. he sent the dead body of the deceased for post mortem through Constables. Thereafter he did not see the dead body. He denied the suggestion that he had gone to see the dead body in the drawing room of the informant Neksu. He had not sent the dead body of the deceased at the drawing room of Neksu nor has given any such instruction to the Constable. The report of the incident was registered in his presence at 3:45 p.m. and after registration of the report he remained at police station for about 45 minutes and thereafter he left for Eklahara by Jeep. He denied the suggestion that Neksu had written the report before him. He submitted the written report at the police station. He denied the suggestion that without the registration of the report, he had proceeded to village Eklahara. He further denied the suggestion that when he reached at village Eklahra, he firstly went to the house of Neksu and he found the dead body of the deceased in front of the drawing room of his house. He further denied the suggestion that he had dictated the report to Neksu. He is not aware of the police encounter of Jauhari Kisan. He is also not aware that the said encounter of Jauhari Kisan was done by S.O. Narain Singh in the way of Eklahara to Kampil. He did not know that when Jauhari Kisan was killed in the police encounter, deceased Ali Mohammad, Babu Khan and Mukut were also accompanying the police party. He denied the suggestion that Ali Mohammad could not be traced out, hence his brother Ali Mulla was murdered.
27. In his cross-examination, he admitted that Ram Sanehi Baniya of Bhawalpur was murdered. It is incorrect the deceased Ali Mohammad and Riyasat were named accused in the said case. He denied that charge-sheet has not been submitted against Ali Mohammad though he was named as accused in the said case. He stated that during his tenure no dacoity had taken place in village Iklahara in which the deceased Ali Mohammad and his brother-in-law Liyaqat of Bahawalpur were accused. He also does not know that the brother-in-law of Neksu and brother-in-law of accused Afsar were real brothers. He is not aware of the fact that the daughter of P.W. 2 Kallu is married to the brother of accused Afsar, namely, Noor Hasan. He was not aware of the fact that Ali Mohammad was also history-sheeter or not and he did not try to gather such an information and Ali Mohammad was amongst good person. The witness had met him when he had come in a meeting at police station. He had not come at police station as an accused at any point of time in his tenure.
28. The trial court after examining the prosecution evidence and the defence version has concluded that it was the appellants along with co-accused, who have murdered the deceased and has convicted and sentenced they for the offence under section 302 I.P.C. for life imprisonment, hence the present appeal by the appellants.
29. Heard Sri Ambrish Kumar Srivastava, learned counsel for the appellants, Sri Jai Narain, learned A.G.A. for the State and perused the record as well as impugned judgment and order of the trial court.
30. Learned counsel for the appellants submits that the deceased Ali Mohammad was a pocket witness of the police and he along with Mukut had assisted the police in the encounter of one Jauhari Kisan, who was done to death in the said police encounter. As a revenge, Mukut, Babu and the brother of the deceased-Ali Mohammad, namely, Ali Mulla were murdered by the gang of Mahabira as Jauhari Kisan belonged to the said gang and it appears that the deceased was also shot dead by Mahabira gang and the appellant has been falsely implicated in the present case due to inimical relationship with P.W. 2. He argued that the daughter of P.W. 2 was married to Noor Hasan, who belonged to the family of appellant Afsar. He has pointed that as per the evidence of P.W. 2 though he has denied that Afsar had forcibly taken his daughter due to which there was a dispute between them on account of which he has implicated the appellant. He further pointed out that there appears to be some animosity of P.W. 2 with appellant Afsar as P.W. 2 had purchased an agricultural land of one Dad Khan and given it to him and Afsar had not given Rs. 412 to him because of which he was annoyed with him and there was ill will between the parties and the false implication of the appellant Afsar by P.W. 2 cannot be ruled out. He argued that P.W. 1, who is the real brother of the deceased was though stated to have accompanied the deceased along with P.W. 2 Kallu at the time of incident but his testimony has been discarded by the trial court as his presence at the place of occurrence was found to be doubtful and the conviction of the appellant is solely based on the evidence of P.W. 2, who claims to be the eye witness of the occurrence. He submitted that the place of occurrence also appears to be doubtful as it appears from the evidence of P.W. 7 Ram Autar Singh-the Investigating Officer as it was stated by him that the place of occurrence is an interior place where the chak of the deceased Ali Mohammad was situated and the deceased was done to death in some other manner and not as stated by the prosecution by some unknown miscreants and at the time of his death belt of cartridges were also found which shows that the deceased was done to death by firing shot on him at his chak which was an interior and lonely place. It was submitted by him that the testimony of P.W. 2 is also not reliable as from his evidence also it is evident that he was following the deceased, who was ahead of him and when the deceased was shot it is stated by him that out of two accused including the appellant Bashir and Afsar one of them, who fired at the deceased which hit him and when he turned around then he saw that two accused were having country made pistol in their hands and because of fear he ran for his life and was standing at a distance of 50 paces in the field of Ali Murad and heard three more shots. He reached the place of occurrence after half an hour which goes to show that the said witness actually did not see the incident and he has also denied that P.W. 1 was present along with him and the deceased at the place of occurrence.
31. It was further pointed out that from the evidence of P.W. 6 it is quite evident that the deceased, who was shot dead at an interior place situated at his chak and when information was received by P.W. 1 and 2 and others villagers they reached at the place of occurrence and informed the police, who arrived thereafter. He submitted that so far as appellant is concerned, he has no criminal antecedent whereas co-accused Bashir was a man of criminal antecedents and he had also strong motive to commit the murder of the deceased as he was caught by the police with a country made pistol and he had an impression that because of the deceased Ali Mohammad being a pocket witness of the police, had got him arrested by the police, hence he committed the murder of the deceased and no recovery of any weapon or incriminating article was made either from the possession of the appellant or on his pointing out, hence conviction and sentence of the appellant by the trial court is against the evidence on record and liable to be set aside and appellant be acquitted.
32. On the other hand, learned A.G.A. opposed the argument of learned counsel for the appellant and stated that it is true that the trial court, only on the basis of testimony of P.W. 2, has convicted the appellant as it has disbelieved the presence of P.W. 1 at the place of occurrence. He argued that P.W. 2 Kallu was accompanying the deceased as it appears from his evidence and the ocular testimony fully corroborates the post mortem of the deceased, who died on account of fire arm injuries on his person. It was submitted by him that the suggestion which was given from the side of the defence that the deceased was a pocket witness of the police and he helped the police in the encounter of one Jauhari Kisan along with Mukut, Babu and Ali Mulla, who have been murdered and they were murdered by the gang of Mahabira as Jauhari Kisan belonged to the gang of Mahabira, has been denied by the P.W. 2 as he was not aware of the said fact but he could not dispute the fact that the deceased used to help the police in the encounters of dacoits of the area and it appears that Mahabira gang was operating in the area as the same was dacoity affected area. Thus, he refuted the contention of the learned counsel for the appellant and argued that no interference is required by this Court in the judgment and order of the trial court.
33. We have given thoughtful consideration to the submissions of learned counsel for the parties and perused the impugned judgment and order as well as lower court record.
34. From the prosecution case it is apparent that the deceased died on account of fire arm injuries received on his person as he has received as many as six gun shot injuries on his person whereas one lacerated wound on the back of the head and in the opinion of the doctor, the cause of death is shock and hemorrhage as a result of ante mortem injuries. The F.I.R. of the case was lodged by P.W. 1 Neksu and the scribe of the same was Mohammad Murtaza Ali which was registered on the basis of written report submitted by P.W. 1 at the police station on 20.3.1984 p.m. with respect to the incident which had taken place on the same day at 2 p.m. in the afternoon. P.W. 1 in his evidence has stated before the trial court that he was accompanying the deceased and eye witness Kallu at the time of incident and has seen the incident in which the two accused including the appellant have murdered the deceased by country made pistols. He further stated that the deceased was also assaulted by the said accused persons by lathi, who were carrying the same. It was submitted by learned counsel for the appellant that it is highly improbable that a person, who is carrying a country made pistol and had shot at the deceased would simultaneously carry lathi with them and assault the deceased with the same. It was submitted that the said improvement has been made by P.W. 1 in his statement before the trial court as injury no. 7 which was a lacerated wound found on the back of the head could be caused by blunt object, hence P.W. 1 tried to improve the prosecution case in his statement before the trial court though he has not mentioned about the deceased being assaulted with lathi by the two accused persons when they fired at him with a country made pistol and they were also carrying lathi with them. Moreover, P.W. 2 has categorically denied the presence of P.W. 1 at the place of occurrence in his evidence and has stated that only the deceased was with him and there was no one else present at the time of incident. After the incident, P.W. 2 had gone to the village and informed them about the incident, thus the trial court found the discrepancy in the evidence of P.W. 1 and his presence at the place of occurrence also appears to be doubtful, hence has discarded his evidence and found that he is not a wholly reliable witness and disbelieved his evidence but so far as evidence of P.W. 2 is concerned, the trial court has based the conviction of the appellant on his testimony only as it found that his evidence fully corroborates the prosecution case as his ocular testimony is supported by the medical report. From his evidence it is also evident that his daughter was married in the house of appellant Afsar to one Noor Hasan, it appears that Noor Hasan married his daughter against his wishes and further it was suggested to him that the appellant Afsar had forcibly taken his daughter to his house on account of which there was some quarrel between him and appellant Afsar though he denied the said fact. It was further suggested that an agricultural land of one Dad Khan was purchased by him-P.W. 2 and he had given the same to appellant Afsar because of his relationship with him and Afsar had not paid Rs. 412 to him due to which P.W. 2 was also annoyed though he has denied the said suggestion also. So far as suggestion given to P.W. 2 that one Jauhari Kisan was killed in a police encounter with the help of the deceased Ali Mohammad, Mukut and Babu Khan, who have assisted the police in the said encounter and Ali Mulla, Mukut and Babu Khan have been done to death and they were murdered by the gang of Mahabira, the witness had stated that he was not aware of the said fact. The witness had admitted that Ram Sanehi Baniya of Bahawalpur had been killed and there was no report regarding his murder against Ali Mohammad, Riyasat and others. In the village at the house of Parshuram, a dacoity had taken place and he had lodged a report against Ali Mohammad, Liyaqat but he has stated that he did not remember about the said fact as the incident was 15-16 years old. The brother-in-law of Afsar, namely, Sheru used to live in his village and there appears to be some quarrel between Liyaqat and Sheru. All these facts go to show that there was some inimical relation of P.W. 2 with appellant Afsar though he has denied the same in his evidence and regarding the deceased Ali Mohammad being a police witness and has having helped in the encounter of Jauhari Kisan, who was stated to be a member of the gang of Mahabira and also that Ali Mulla was suspected to be involved in the dacoity which had taken place in the village at the house of Parsuhram, goes to show that it was quite probable that the deceased was done to death in some other manner by unknown miscreants in the interior and lonely place where his chak was situated as has come in the evidence of P.W. 2 and the false implication of the appellant Afsar by P.W. 2 cannot be ruled out. It is also significant to note here that he had no motive to commit the murder of the deceased but this Court also does not loose sight that in a case of direct evidence motive has no significance but it would not be safe to convict and sentence the appellant only on the basis of evidence of P.W. 2 which appears to be highly inimical witness against the appellant. It also appears from the evidence of P.W. 2 that he was standing at a distance of 50 paces from the place of occurrence and has seen the accused persons from there. After half an hour he reached the place of occurrence and saw that the deceased lying dead which further goes to show that his presence at the place of occurrence is doubtful as had he been present there definitely he would also have been killed by the accused persons.
35. From the cross examination of P.W. 7-the Investigating Officer it is evident that he has stated that Ram Sanehi Baniya of Bahawalpur was murdered and in that murder he was given a suggestion that he has denied that the deceased Ali Mohammad and Riyasat were also an accused and he has submitted charge-sheet against the accused persons but had not submitted any charge-sheet against Ali Mohammad which also goes to show that Ali Mohammad was also not a man of good antecedent and he was a police witness and used to assist the police in the encounters of dacoits and he himself was involved in criminal cases but the police had protected him and no charge-sheet was submitted against him in the murder case of Ram Sanehi. Thus from the prosecution case, it is apparent that the prosecution has failed to prove its case beyond reasonable doubt against the appellant, hence the appellant is entitle to be acquitted.
36. In view of the foregoing discussion, impugned judgment and order of the trial court convicting and sentencing the appellant Afsar is hereby set aside.
37. The appeal stands allowed.
38. The appellant Afsar stated to be on bail. He need not surrender. His bail bond and sureties stands discharged.
39. It is further directed that the appellant shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
40. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:-17.5.2019.
Shiraz.