Allahabad High Court
Choon Choon Pahalwan, Ghulam Jafer, ... vs State Of U.P. on 27 September, 2005
Author: Mukteshwar Prasad
Bench: Mukteshwar Prasad
JUDGMENT Mukteshwar Prasad, J.
1. This Criminal Appeal at the instance of four Accused has been filed against judgment and order-dated 23.6.1981 passed by the then Additional Sessions Judge, Etah in S.T. No. 611 of 1978 whereby two accused Choon Choon Pahalwan and Mukhtyar were convicted under Section 148 I.P.C. and sentenced to suffer rigorous imprisonment for a period of 1 1/2 years Accused Mohammad Jafar and Gulaam Jafar were found guilty under Section 147 I.P.C. and were directed to undergo rigorous imprisonment for a period of one year. All the four accused were convicted under Section 307 read with Section 149 I.P.C. and were directed to undergo rigorous imprisonment for a term of seven years. All the sentences of each of the accused were directed to run concurrently.
2, In brief, the facts of the prosecution case were as under: -
Late Mohammad Qasim Khan handed over a written report at Police Station Kasganj on 6.11 1975 at 10 p.m. and local police registered a case at Crime No. 819 against the appellants and four others. It was alleged in the report that informant's brother Fateh Mohammad had his milk shop in the street known as Manautha in town Kasganj. He had a timber sheo also in the same street at a distance of about 10-15 yards. He used to keep Kulhar (earthen pot) at his timber shop.
3. On 6. 11 1975 at about 935 p.m. Fateh Mohammad, went to his timber shop to briny Kulhar When he reached the platform of timber shop, he was attacked upon all of a sudden and Mohammad Jafar, Iqbal and Ashfaq caught hold of him. Accused Choon Choori Pahalwan and Mukhtyar attacked upon him with knives and Kishore Pal exhorted them to kill. After sustaining knife injuries, Fateh Mohammad raised hue and cry, which attracted his brother Najzirti, and Qasim Accused Khalid fired two shots as Nazim, Nazim received gun shot injuries and fell down Again Fateh Mohammad raised alarm and several witnesses including Eiaboo, Shaukai, Iqbal, Anwar and others arrived there and saw the incident. Gulam jafar and others were also accompanying Khalid but they were not known to the informant by name. There was long standing enmity between the parties.
4. The condition of Nazim and Fateh Mohammad was critical. Hence, they were taken to P.H.C. Kasganj for medical examination of injuries and Mohammad Qasim lodged a F.I.R. at Police Station Kasganj, as mentioned above,
5. P.W. 2 Dr K.S. yadav, the then Medical Officer, P.H.C. Kasganj examined injuries of Nazim Khan at 10 p.m. on 6.W.1975 and found 72 multiple gun shot wounds in an area of 10 cm. x 8 cm. in front of the chest. Besides, he found gun shot abrasion also. Dr, Yadav advised X-ray of chest and condition of Nazim khan in his opinion was dangerous.
6. On the same day at 10,15 p.m. Dr. Yadav examined injuries of Fateh Mohammad and found two stab wounds, six incised wounds and eleven abrasions (scratches) including teeth bite mark also on the top of shoulder.
7. In the opinion of doctor, all the injuries were fresh at the time of examination.
8. The case was investigated as usual by P.W. 9 S.I. Ram Niwas Sharma, He interrogated the witnesses and prepared a site plan He collected blood strained earth also from the scene of incident. In the month of June, 1976, the investigation was taken over by S.I. Ram Kumar Gupta who interrogated the accused and after completing the investigation filed charge sheet in the court below.
9. Accused Khalid expired before committal of the case to the Court, of Session.
10. On 10.10.1980, accused Choon Choon Pahalwan and Mukhtyar were charged under Sections 148 and 307 I.P.C. (simpliciter), Mohammad Jafar and Gulam Jafar were charged under Section 147 I.P.C. On the same day all the four accused Were charged under Section 307 read with Sections 149 I.P.C. also. They pleaded not guilty to the charges and claimed to be tried
11. In support of its case, the prosecution examined, P.W. 1 S.I. Ram Kumar Gupta II Investigating Officer of the case, P.W. 2 Dr. K.S. Yadav, Medical Officer, who had examined the injuries of Nazim and Fateh Mohammad, PW 3 Fateh Mohammad, the injured, P.W, 4 S.I. Shobaran Singh, who prepared chik report and made entries in the G.D. P.W. 5 Shanker Lal Sharma, Pharmacist of P.H.C. Kasganj, P.W. 6 Baboo, P.W. 7 Shaukat, P.W. 8 Anwar and P.W. 9 S.I Ram Niwas Sharma, Investigating Officer of the case.
12. All the four accused in their statements totally denied all the accusations and pleaded their false implication on account of enmity. No evidence was led in defence
13. After having considered entire material on record and arguments made on behalf of the parties, learned trial court found all the four accused guilty and convicted and sentenced them, as mentioned above
14. I have heard learned counsel for the appellants at length, learned A.G.A. for the State and have gone through the entire record carefully.
15. Learned counsel for the appellants has asseased the judgment under appeal mainly on the grounds that out of two injured, who allegedly sustained injuries in the course of incident, only Fateh Mohammad was examined in the court below. Besides, three witnesses, namely, P.W. 6 Baboo, P.W. 7 Shaukat and P.W. 8 Anwar who were named as eyewitnesses in the written report also, did not support the prosecution story and turned hostile. It was further submitted that accused Khalid who allegedly fired twice at Nazim was killed after submission of the charge sheet. It was next contended that Mohammad Jafar had played no active role and he caught hold Fateh Mohammad along with others. He, therefore, deserves acquittal or at least benefit of doubt is to be given to him.
16. According to appellants' learned counsel, Gulam Jafar played no role and even the injured (Fateh Mohammad) did not say even a single word regarding his role |or participation in the incident in question He is, therefore, entitled to acquittal. The conviction of appellants is based on solitary testimony of Fateh Mohammad which is not free from doubt and it would not be* safe to affirm the findings recorded by the court below.
17. On the other hand, learned A.G.A. supported the impugned judgment and urged that first informant Mohammad Qasim and Nazim were killed during pendency of the case in the Court below and as such, both were not examined by the prosecution. There was long standing enmity between the parties and appellants had a strong motive to commit the murder of Nazim and his brother Moreover, there is no legal bar in placing reliance on uncorroborated and solitary testimony of Fateh Mohammad and the court below committed no illegality in believing his testimony. Further the testimony of Fateh Mohammad finds full support from medical evidence on record and the circumstances.
18. I have considered the submissions made on behalf of the parties and I have also scrutinized oral as well as documentary evidence on record. In my opinion, this appeal has no substance and lacks merit and is liable to be dismissed
19. First of all, I find that the incident in question took place at about 930 p.m. on 611 1975 and FIR was lodged at Police Station on the same night at 10.00 p.m. i.e. within half ah hour of the incident. Thus, no delay took place at all in reporting the incident in writing to the police. All the four appellants arid four others were named in the report and role played by the assailants was also indicated therein
20. I further find that injuries of Nazim and Fateh Mohammad were examined at P.H.C. Kasganj on the same night at 10.00 p.m. and 10.15 p.m. respectively by P.W. 2 Dr. K.S. Yadav. Dr. Yadav found 72 multiple gun shot wounds on front of the chest in an area of 10 cms x 8 cms. All the injuries were caused by firearm and condition of Nazim was dangerous. Nazim was shifted to Aligarh for better treatment on the same night
21. Dr. Yadav who examined Fateh Mohammad also found as many as 19 injuries on his body including two stab wounds and six incised wounds and injuries were caused by sharp edged weapon. Moreover, injuries were fresh at the time of examination. Thus, I find that there is no delay in medical examination of the injuries also. I further find that two brothers were seriously attacked upon by the appellants, who used firearm as well as sharp edged weapon in causing the injuries. Dr. Yadav mentioned in the injury report of Nazim Khan that his condition was dangerous and he was shifted to Aligarh, Fateh Mohammad was also shifted to Aligarh next day for better treatment. Keeping in mind the number, nature, seat of injuries and weapon used in causing the injuries to both the brothers by appellants, it can safely be had that appellants clearly intended to kill Fateh Mohammad and his brother Nazim, who rushed to rescue him on the fateful night. I have no doubt at all in my mind that appellants made an attempt to commit murder of Fateh Mohammad and his brother Nazim. It. has been held recently by Supreme Court of India in State of M.P. v. Saleem. 2008 SCC (Crl.) 1329 that it is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Sections 307 I.P.C. cannot be acquitted merely because the. injuries inflicted on the victim were In the nature of a simple hurt
22. This position was highlighted in State of Maharashtra v. Balram Bama Patil , Girija Shanker v. State of U.P. , and R. Prakash v. State of Karnataka.
23. In Sarju Prasad v. State of Bihar , it was observed in para 6 that mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Sections 307.
24. In the instant case, it is crystal clear that fire arm injuries and injuries caused by sharp edged weapons to both the brothers come within the purview of Section 307 IP C.
25. Now question is as to whether all the appellants or how many of them were responsible for committing crime in question. As rioted above, Mohammad Qasim and Nazim, informant and the injured respectively, were done to death during pendency of the case and as such, they could not be examined. Accused' Khalid, who was having a gun and fired twice, was also killed. Out of four witnesses, named in the report, Baboo, Shaukat and Anwar were produced in the witness box but they did not support the prosecution version and turned hostile. I, however, find that P.W. 6 testified that he saw injuries on the body of Fateh Mohammad in the night. Similarly, P.W. 8 Anwar gave out that on the impugned night, he was going to cinema and saw a huge crowd near the shop of Fateh Mohammad. Thus, Baboo and Anwar also supported the prosecution story to this extent that some incident took place.
26. P.W 3 Fateh Mohammad, who became first victim of the assailants fully supported the prosecution story and gave out in clear words that on the impugned night at about 9.30 p.m. he reached his timber shop to bring Kulhar (earthen pot). When he was stepping on the platform of the shop, all of a sudden, Mohammad Jafar, Iqbal and Ashfaq appeared there and apprehended him. Thereafter, Mukhtyar and Choon Choon Pahalwan attacked upon him with their knives with a view to kill him. On his raising alarm, Mohammad Qasim and Mohammad Nazim rushed to rescue him but Khalid fired on the chest of Nazim According to him, both brothers were injured in the course of incident and they were immediately taken to the hospital and third brother Mohammad Qasim lodged F.I.R. The injured stated in clear words that there was sufficient electric light in which assailants were identified. The injured was subjected to lengthy and searching cross-examination but nothing could be elicited therein to disbelieve or discard his testimony. However, I find that no role was assigned to Gulam Jafar in the crime in the written report lodged by Mohammad Qasim except that he was accompanying Khalid. In the court also, the injured did not say even a single word about the role played by Gulam Jafar. So far as Mohammad Jafar is concerned, Fateh Mohammad disclosed that Mohammad Jafar and two others had caught hold of him. The witness totally denied that he falsely implicated the appellants. After scrutiny of the entire testimony of the injured, I see no good ground to reject his testimony.
27. In view of the close scrutiny of the entire material on record, as noted above, and keeping in mind, the promptness in lodging the report at the Police Station as well as in medical examination of the injuries and direct and reliable evidence of P.W. 3, Fateh Mohammad, I hold that prosecution succeeded in establishing the charges against three appellants Choon Choon Pahalwan, Mukhtyar and Mohammad Jafar beyond all reasonable doubts. Neither in F.I.R. nor in the evidence of the injured, Gulam Jafar was assigned any specific role in the commission of the crime. I, therefore, hold that he deserves acquittal and is entitled to get benefit of doubt.
28. In the result, I hold that three appellants Choon Choon Pahalwan, Mukhtyar and Mohammad Jafar were rightly found guilty. So far as Gulam Jafar is concerned, he is entitled to be acquitted of all the charges. So far as, sentence is concerned, the incident in question took place in the month of November, 1975 and since then, 30 years have elapsed All the appellants are now above 60 years old or more. I am, therefore, of the opinion that sentence of five years under Section 307/149 IPC will meet the ends of justice and will be just and appropriate sentence in the facts and circumstances of the case
29. The appeal is, therefore, disposed of as under: -
The Conviction and sentence of appellants Chooh Choon Pahalwan and Mukhtyar under Section 148 I.P.C. are confirmed. The conviction and sentence of Mohammad Jafar under Sections 147 I.P.C. are also confirmed The conviction of appellant Choon Choon Pahalwan, Mukhtyar and Mohammad Jafar under Section 307 read with Section 149 I.P.C. is also confirmed Each of them is directed to :suffer rigorous imprisonment for a period of five years.
All the sentences of three appellants shall run concurrently. The appeal filed by Gulam Jafar is allowed. He is acquitted of all the charges framed against him.
All the appellants are on bail 'which is cancelled. Chief Judicial Magistrate, Etah shall cause the three appellants arrested and lodge them in Jail to serve out the aforesaid sentences. He will send a compliance report to this Court within two months from the date of receipt of a copy of the judgment.
30. A copy of this judgment shall be sent to the Chief Judicial Magistrate concerned immediately for compliance.