Allahabad High Court
Maksood Son Of Nazir, Manzoor, Maqbool ... vs State Of U.P. on 24 May, 2007
Author: Vinod Prasad
Bench: K.S. Rakhra, Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. The appellants Maksood, Manzoor, Maqbool and Jahangir in Criminal appeal No. 1486 of 1982 and appellant Nazeem (since dead) in Criminal appeal No. 1515 of 1982 have challenged their convictions Under Section 302/149 and 147 IPC, recorded by III Additional Sessions Judge Ghazipur in S.T. No. 335 of 1980 State v. Maksood and Ors. relying to P.S. Saidpur, district Ghazipur, vide his impugned judgment and order dated 27.5.1982. Since both the above appeals are related with the same Sessions Trial, hence they have been clubbed together and are being disposed off by this common judgment.
2. So far as Criminal Appeal No. 1515 of 1982 Nazeem v. State of U.P. is concerned, the same has been abated vide order dated 20.4.2007, as the sole appellant in the aforesaid appeal had died vide the fax of CJM, Ghazipur dated 21.2.2007, which is attached with the record of the said Criminal Appeal.
3. The prosecution allegations against the appellants are that the house of informant Rozan is adjacent to the house of his cousin brother Mannan whose house is adjacent to the house of Jahangir in village Chak Hasan, Mohalla Lachhipur, P.S. Saidpur, district Ghazipur. On 23.7.1 980 at about 11 a.m. a stray dog entered into the house of Jahangir and alter jumping over the boundary wall entered into the house of Maksood, a distant relative of Jahangir and licked 15 kg. of flour which became useless for human consumption. Maksood and others got infuriated because of the aforesaid loss and there was a triadic altercation between the family members of Maksood and Mannan who were pacified by co-villagers. Isahaq deceased was a mason who had gone on his work in the day and had returned in the evening on that day. He was going to purchase tobacco at the shop of Kedar Teli at about 8.30 p.m. and when he reached near the door of Nazeem (appellant whose appeal has been abated) uncle of Maqsood he inquired from Nazeem as to why an altercation in noon ensued on a very petty matter. On inquiring heated vituperated altercation started between the deceased and Nazeem uncle of Maksood. From the side of Nazeem, Maksood, Maqbool, Manzoor and Jahangir (four appellants in Criminal Appeal No. 1486 of 1982) who are the relatives of Nazeem reached at the spot and caught hold of Isahaq deceased. Emanated shouts attracted informant Rozan, Amzad, injured Mannan etc. at the spot. Meanwhile, Nazeem aforesaid (dead appellant) picked up a knife from his door and hurled it, as a result of which Isahaq deceased received injury on his neck and blood started flowing from the said injury. Isahaq firstly sat down and soon thereafter fell down because of the sustained injury. Amzad in an attempt to save Isahaq also sustained injuries. Accused persons took to their heels towards south. Injury of Isahaq was tied with a cloth and arrangement was being made to transport him to the hospital when Isahaq scummed to his injury. Informant scribed the FIR and covering a distance of two miles east lodged it at P.S. Saidpur, district Ghazipur as Crime No. 179 of 1980 Under Section 147, 148, 149 and 304 IPC at about 11.45 p.m. that very day.
4. Ayodhya Prasad Sharma P.W.5 on the basis of scribed FIR Ext. Ka 1 prepared the chik FIR Ext. Ka 4 and GD entry Ext. Ka 5. Prem Shankar Dwivedi the Station Officer P.W. 10 commenced the investigation and recorded the statement of the informant at the police station and then proceeded for the spot picking up sub Inspector B.N. Pathak and other constables from the way. Because of non-availability of sufficient light he deferred the inquest on the dead body. He was informed that the injured had gone for medical examination and therefore he recorded the statements of the witness Mannan and inquired about the incident from the neighbors. Next day morning he conducted the inquest on the dead body of the deceased and prepared other relevant papers and then dispatched the body through constable Lallan Prasad P.W. 6 and Anurudha Prasad for being carried to the mortuary for the purpose of post mortem examination. He also prepared site plan Ext. Ka 6. He also recovered the bloodstained '^Weapon of assault (Ext. 1) and prepared it recovery memo Ext. Ka 9. He also recovered bloodstained and plain earth and prepared its recovery memo Ext. Ka 10 and blood stained shoes Ext. Ka 11. He had proved the bloodstained knife, shoos as material Ext. 4,5 and 1. Further investigation into the crime was conducted by Karam Husain P.W, 7 who after 'completing the investigation submitted a charge sheet Exi. Ka 7 in the court against the appellants.
5. Accused persons were summoned by the CJM, Ghazipur and were committed to the court of Sessions for trial. Ill Additional Session's Judge, Ghazipur framed charges against them Under Section 147, 148, 302/149 IPC on 17.1.1981. Additional charge was framed against them Under Section 307/149 IPC on 14.8.1981 by the trial judge. All the charges were denied by the accused persons who claimed to be tried.
6. To prove its case during the trial prosecution examined 15 witnesses. Rozan P.W. 1 (informant) Amzad P.W. 2 (real brother of Mennan Eyewitness) are the witnesses of fact. Kanhaiya Krishna Srivastava P.W. 3 (who conducted the post mortem), Dr. Ram Vilash Dubey P.W. 4 (who examined the injuries of the injured), Ayodhya Prasad Sharma P.W. 5 (who prepared the FIR and GD), Lallan Prasad (who carried the dead body to the mortuary), Karam Husain P.W. 7 (llnd I.O.) Section N. Misra P.W. 8 (clerk who send the material Exts. for Forensic Science examination), Bhola Nath P.W 9 (who had booked the material Exts for Forensic Science laboratory at the Railway Station), Prem Shankar Trivedi P.W. 10 (1st P.O.), sub Inspector Brahmanand Pathak P.W. 11 (who conduced the inquest on the dead body), Sadhu Singh Head Constable Moharrir P.W. 12 (who had received material Exts. at the Police Station). Ram Pyarey Gupta P.W. 13 (who had deposited the material Exts at Sadar Malkhana Ghazipur), Ramdeo Ram P.W. 14 and Ram Chandra P.W. 5 (who had brought the material Exts to the police station) are' he formal witnesses.
7. Appellants took the defence of false implication and denied the incriminating circumstances appearing against them in the evidence. Msksook took the defence that all the witnesses are real brothers and Because they are drunkard, therefore there. was tussle be between them because of which they have been falsely implicated. Accused persons however, led no defence evidence to support their defence version.
8. Trial Judge believing the prosecution version, convicted the appellants for life imprisonment u/s;302/l49 IPC and six months R.I. Under Section 147 IPC Appellant Nazeem (since dead) was convicted Under Section 302 IPC vide his impugned judgment and order dated 27,5.1982. Hence this appeal.
9. The report of the Central forensic Laboratory Luc know dated 28.1.1981 indicates that the recovered knife and collected earth and the clothes of the deceased contained blood on it.
10. P.W. 1 Rozan who is the informant of the crime supported the prosecution version and deposed the pedigree that his grand hither was Gulam Husain who had two sons Shahrad Ali and Mehar All. Zafar Ali was the son of Shahrad Ali where as Fazil was the son of Mehar Ali. Hasmullah Nazeem (dead appellant) and; Naseer are the SONS of Fazil. Appellant Maksood is the son of Naseer. Hasmullah had 5 sons Alamgeer, Maqbbol, Manzoor, Jahangir and Muneer. Out of them Maqbool, Manzoor and Jahangir, are the appellants in the, present case. Jafar Aii had 4 sons Halim, Noor Mohammad, Shakoor and Rasool. Informant Rozan and Isahaq are the sons of Halim and Maianan and Amzad P.W. 2 are the sons of Noor Mohammad.
11. Describing topography he evidenced that the house of the appellant is towards the western side of the village, as is clear from the site plan Ext. Ka 8 which indicates that towards north of the house of Mannan is the house of Jahangir and north of which is the house of Maksood. Adjacent to the house of Maksood is the house of the informant and the deceased. Towards east of the house of Maksood is the house of Shakoor and dead appellant Nazeem. Towards south of the house of Nazeem (dead appellant) is the open land of the appellant. This cluster of houses is towards the western side of the road which goes to the village Bamnauli.
12. Regarding the incident he had deposed that on the date of the incident i.e. 23.7.1980 a street dog had entered into the house of Maksood jumping over the boundary wall and had licked 15 kg. of flour because of which the family members of the house of Maksood and Mannan had a fight amongst them which was got pacified by the co villagers. The deceased Isahaq, who was a mason, had returned from his work in the felling and had gone to purchase tobacco at about 8.30 p.m. from the shop of Kedar Teli and when he reached infront of the house of Nazeem, he enquired as to why fight had been ensued on such a petty matter. On inquiry, abuses started between the parties. Meanwhile oilier appellants also reached at the spot alongwith the informant and the witnesses. Four surviving appellants caught hold of the deceased and Nazeem picked up a knife from his door and assaulted the deceased on his neck, because of which deceased sustained injury and fell down. Amzad P.W. 2 tied to catch hold of Nazeem but he was also assaulted with knife as result of which he also sustained injuries. Arrangement was being made for carrying the injured Isahaq to the hospital but he lost his life at the spot itself, A lot of blood sprinkled at the place of the incident. Informant scribed the FIR land lodged it at the Police Station. This witness was subjected to lengthy cross-examination. He had deposed that no marpit had ensued in noon incident and only women folk of both the sides were involved in that. He has admitted that in the noon incident the fault was that of the wife and mother of Maksood appellant. He had deposed that he had reached at the village after hearing the vetuprization between Isahaq and Nazeem. He had deposed that the knife was lying on the ground in the front of the house of the appellant Nazeem. He had further deposed that as soon as he reached at the spot the knife was hurled by Nazeem on the deceased. Me had further Keposed that after the incident all the accused persons had made their Reaped good. He had further deposed that knife was hurled by catching it from both the hands. He had further stated that Maqbool and Manzoor had caught hold of the hands of the deceased and Jahangir and Maksood had caught him from his waist when Nazeem had assaulted him. He had further deposed that all the appellants who had caught hold of the deccased were empty handed. Neither prior to the incident nor subsequent they had any weapon in their hands. He had further deposed that he had informed the I.O. regarding the injuries caused to Amzad but he did not lnow as to why the aforesaid fact is not mentioned in his statement Under Section 161 Cr. P.C. He had further stated that he had scribed the FIR and had given theinjury report of Amzad to the I.O. at the place of the incident itself. He had further deposed that the had proceeded for the police station alongwith injured Amzad but Amzad stayed in the hospital and he proceeded to the police station. He had denied that the FIR was scribed next day after due consultation illation and deliberations.
13. Amzad P.W. 2 also supported the version given by Rozan P.W.1. He is an injured witness and was subjected to searching cross-examination. He had deposed that there was hurling of abuses but he did not know as to what abuses were hurled. He had reached at the place of the incident hearing the vetuprization and in his witnessing assault was made. He had also stated that knife was picked up from the ground which was lying there at a distance of one or two hands only. He had also mentioned the same manner of assault as had been deposed by P.W.1 Rozan He further evidenced that Nazeem could not be stopped because as soon as he reached On the spot Nazeem had assaulted the deceased. He further deposed that he was assaulted twice by the accused Nazeem with knife.He bud further deposed that he had stated before the I.O. that Nazeem had assaulted him with knife but he does not know why his said statement dose not find mention in his statement Under Section 161 Cr. P.C. He had further evidenced that he and the informant had gone for lodging the FIR and for his medical examination together. He had further deposed that he had not paid any money for getting himself medically examined and he had returned to his village next day at dawn and had handed over his medical examination report to the I.O. when he met him at the spot. He had denied the suggestion that he had not witnessed the incident and he got himself medically examined only to be a witness of the incident.
14. Dr Kanhaiya Krishna Srivastava, P.W. 3 Medical officer-incharge District Hospital Ghazipur had proved his post mortem report which was preared in 25.7.1980 at about 12 noon at thw time of conduction the autopsy on the body of the deceased. He stated that the deceased was stoutly built and his tongue was slightly protruded. He Stated that the deceased was stoutly built and his tongue was slightly protruded. Blisters were present on his body. Sin and hair were peeling off and the decomposition had set in. He had further evidenced that the deceased was anemic and there was teeth decay. Stomach contained 1 oz of fully digested meal. In small and large intestines feacal matter and gases were present. Bladder was empty. The doctor had found the following injuries on the body of the deceased:
1. Horizontal incised wound 6 cm. x 1 cm. x 3 an. on the front surface of neck 5 cm. above and rt. Wards to the inner end of Rt. Clavicle. Blood scabs present.
2. Vertical abrasion 0.5 cm x 0.25 cm on the abdonwn 9 cm above the neck, Blood scabs present.
15. Dr. Ram Vilash Dubey P.W. 4 had proved the medical examination report of the injured as Ext. Ka 3 and had deposed that the had examined the injured Amzad on 24.7.1980 at 12.05 in night and following injuries were found on his person
1.Abrasion linear 2.5 cm x 0.1 cm on left side chest cm above left nipple.
2. Penetrating wound 1-1/2 cm x 0.5 cm on left side chest 1 cm above left nipple. Depth not probed advised for X-RAY chest.
16. Injuries of the injured were caused by some sharp pointed object Injury no. 1 was somple and injury no.2 was kept under observation and advised for x-ray
17. From the cross-examination of the aforesaid two witnesses nothing material had come out from their deposition , which may dent the prosecution.
18. Ayodhya Prasad Sharma P.W. 5 had proved the chik FIR and Gd entry and he had stated that the first I.O. was present at the police station when the FIR was registered. He had denied the suggest that the FIR was got changed subsequently and the original FIR did not contain the description of the injuries of the injured Amzad. He had also denied the suggestion that the FIR was recorded belatedly.
19. Prem Shankar Trivedi P.W. 10 and Karam Husain P.W. 7 both the Investigating Officers have proved various steps which they had taken during the investigation and from their cross-examination nothing Substantive has come out which may damage the prosecution version. Rest M the witnesses are only formal witnesses of carrying the body to the mortuary material Exts to the police station, deposit of those material Exts etc. Brahma Nand Pathak P.W. 11 Sub Inspector who had conducted the inquest has proved the inquest report and other relevant papers prepared by him as Ext. Ka 12 to Ext. Ka 17. He had deposed that he started conducting the inquest on 24.7.1980 at about 6.10. a.m. and had completed it at 7.4.m. and thereafter he had dispatched the body to the mortuary. He denied that the offences were mentioned subsequently in the inquest report and there was a difference of pen and ink in preparation of the same. He had denied the suggestion that inquest was filled subsequently after the case was cooked up.
20. As stated above the defence of the appellants was that of denial which was not accepted by the trial court, who convicted them by the impugned judgment, as has been mentioned above. Hence this appeal.
21. We have heard Sri Devendra Swaroop learned Counsel for the surviving appellants and Sri Sudhir Kumar Agrawal learned AGA for the State.
22. Sri Devendra Swaroop learned Counsel for the surviving appellants made a futile endeavour to dislodge the evidence of two witnesses of fact by stating that there are significant contradictions which have occurred in their testimony. He made a vain attempt to argue that the presence of Rozan P.W. 1 and Amzad P.W. 2 who is an injured witness is not established at the time of the incident. However, finally, after making some critical argument regarding the evidence of two witnesses of fact, two doctors and two Investigating Officers, he conceded that the presence of the two witnesses of fact on the spot cannot be doubted and they were present at the time and at the scene of the incident. He, therefore, concentrated only on the offence, which is proved against the surviving four appellants in Criminal Appeal No. 1486 of 1982 and submitted that taking the prosecution evidence as led during the trial the offence of the appellants will not be covered Under Section 302/149 IPC and their offence will not travel beyond the scope of Section 352/149 IPC.
23. Learned AGA on the other hand submitted that the prosecution has successfully brought home the guilt of the appellants and while the deceased was caught hold he was assaulted with knife on his neck as a result of which he died soon there after and hence the appellants have been rightly been convicted by the trial Judge and the appeal preferred by the appellant is merit less and deserves to be dismissed.
24. We have considered the submissions raised by both sides and perused the entire material on record.
25. So far as the argument regarding the presence of the two witnesses of fact Rozan P.W. 1 and Amzad P.W. 2 is concerned, we are of the opinion that the presence of the aforesaid two witnesses of fact at the scene of the incident cannot be doubted. Rozan P.W. 1 is real brother of the deceased and Amzad P.W. 2 is an injured witness who had sustained injuries in the same incident. Prior to the incident there was no enmity between the informant and the appellants. The informant had no animus against the appellants to falsely implicate them for the offence of murder of his own brother sibling. It is the incident which had occurred near by the house of the prosecution side as well as the accused side. The house of Rozan is very near to the place of the incident and therefore his presence at the spot is also very natural. Both the sides are related with each other and therefore there was no difficulty for the prosecution witnesses to identify the assailants. From the cross-examination of this witness Rozan the defence has not been able to discredit his testimony regarding his presence on the spot. Moreover, the informant had lodged the FIR soon after the incident after three hours and 15 minutes covering a distance of two miles. Time in lodging the FIR therefore is not much and we have no reason to doubt the allegations levelled in the FIR. Since P.W. 1 had no reason to falsely implicate the appellant and since his deposition before the court is credit worthy we are unable to accept the contention of Sri Devendra Swaroop that P.W. 1 was not present at the scene of the incident at the relevant time.
26. So far as Azmad P.W. 2 is concerned, he is an injured witness and he had sustained injuries in the same incident. There was no reason for himself to falsely depose against the appellants. Fie had denied the suggestion that he got injuries manufactured for the purposes of being a witness of the incident. We are of the view that if the prosecution wanted to manufacture the injury the easiest would have been for them to get the injury manufactured on the informant so as to make prosecution case foolproof which had not been done by the prosecution a t all. In this view of the matter we are of the opinion that the version of the prosecution that Amzad sustained injuries during the incident is a correct version. Further from the medical examination report of Amzad it transpires that he was medically examined on the date of the incident itself a t 12.05 in the night brought by himself. He had sustained penetrating wound on the chest 1 cm above left nipple. The other injury is also a linear abrasion on the left side of the chest. No body will take the risk of getting penetrating wound manufactured on the left side of the chest of which depth cannot be proved. It is to be reminded that heart is towards the left side of chest and any injury near to it would have proved fatal. From the injury report and the deposition of doctor R.V. Dubey P.W. 4 we are of the opinion that the injuries sustained by Amzad cannot be manufactured and in fact he received injuries in the incident itself.
27. Thus from the above discussions, we are of the view that the presence of two witnesses of fact at the time of the incident at the place where the deceased was assaulted is well established. From the post mortem examination report of the deceased we are also of the view that injuries sustained by the deceased was so grievous that in all probability it would have caused his death and therefore the offence which was committed by Nazeem, the dead appellant, was not short to Section 302 IPC.
28. Coming to the case of the surviving appellants in the present appeal we are of the view that they cannot be convicted with the aid of Section 149 IPC read with Section 302 IPC. From the prosecution evidence it is clear that the incident occurred all of a sudden in dark when the deceased Isahaq was going to purchase tobacco for himself from the shop of Kedar Teli. Isahaq was not present at the time when the day incident happened and in fact the evidence is that in that day incident only ladies of the two houses were involved. Further the night incident occurred because of the altercation and vetuprization between Nazeem (dead appellant) and Isahaq. No other person of either side was present at that time when the vetuprization and triadic altercation started. At the time of starting of altercation both the involved persons were empty handed. Prior to the altercation there was no enmity between the deceased and Nazeem. So far as Maksood, Maqbool, Manzoor and Jahangir appellants are concerned they also reached at the spot empty handed without carrying any weapon with them. No doubt they caught hold of the deceased but that may be because they were endeavoring to save the clash between the two. It is the prosecution evidence itself that all of a sudden Nazeem picked up knife and hurled it on the neck and caused injuries to the deceased. Knife was lying on the spot from before. No body had carried any weapon with them. The act of Nazeem according to the prosecution evidence was within twinkling of an eye and the prosecution has led no evidence at all to show that the appellants shared common object to murder the deceased. There was no meeting of mind and no preplan. It was an incident which occurred at the spur of the moment. The four surviving appellants reached on the spot after hearing the hurled abuses. In such a view it is difficult for us to accept the contention of the learned AGA that all the appellants had shared the common object to murder the deceased. From the evidence on record we are inclined to accept the contention of Sri Devendra Swaroop learned Counsel that the four surviving appellants never knew that any altercation between the deceased and Nazeem will ensue and that in that altercation Nazeem will pick up the knife and assault the deceased. To our mind it was the individual act of Nazeem which was not shared by any of the other appellants. Merely by catching hold of the deceased by the four appellants is not indicative of sharing of common object to commit the murder or having common object to cause him grievous injuries. The deceased may have been caught so that he may not assault Nazeem and Nazeem took undue advantage of restricting the deceased from assaulting him. It is pointed out that the deceased was 48 years of age where as Nazeemjwas much old aged about 65 years age. In such a view the apprehension of the four appellants that Nazeem be not assaulted by a much younger deceased that they seems to have caught hold of him. From the prosecution evidence it is also clear that the incident preceded with altercation between the deceased and Nazeem. Since the altercation was already going on and Nazeem was empty handed that surviving appellants had no clue that dead appellant will assault the deceased. In such a view we find it difficult to apply Section 149 on these appellants read with Section 302 IPC. We may note that it is not the prosecution case and there is no evidence to the effect that the deceased was caught by the appellants to facilitate assault by knife on him by Nazeem. On the contrary the evidence is that knife was hurled all of a sudden.
29. From the discussion made above we are of the opinion that so far as Section 149 IPC is concerned the appellants are not guilty with the aid of Section 302 IPC. Their guilt was only this much that they caught hold of the deceased unintentionally without any knowledge that the dead appellant Nazeem will assault him with knife. Consequently, the appellants are guilty of exercising criminal force against the deceased, which is punishable Under Section 352 IPC.
30. Resultantly Criminal Appeal No. 1515 of 1982 Nazeem v. State of U.P. is dismissed as abated.
31. Criminal Appeal No. 1486 of 1982 Maksood and Ors. v. State of U.P. is hereby partly allowed. Convictions of the appellantsin aforesaid appeal Under Section 302/149 and 147 IPC are hereby set aside. Instead the appellants are convicted Under Section 352/149 IPC and are sentenced for three months R.I. with further direction that each of them shall pay Rs. 20,000/- as compensation to the family members of the deceased.
32. It has been stated by Sri Devendra Swaroop that appellant Manzoor and Jahangir are in Jail. If both appellant have already served the above-imposed sentence of imprisonment they shall be released from Jail forthwith. So far as appellants Maksood and Maqbool are concerned, they are directed to surrender to their sureties bonds and bail bonds forthwith. Trial court is directed to get them arrested and send them to Jail to serve out the sentence awarded by this judgment.
33. Appellants are allowed two months time to deposit the entire amount of compensation awarded by this judgment. In the event of default CJM Ghazipur is directed to realize it as an arrears of land revenue from them and as soon as it is realized he shall pay it to the entitled family member of the deceased by noticing him within one month thereafter.
34. Let a copy of this judgment be certified to the trial court and CJM, Ghazipur forthwith. CJM Ghazipur shall report compliance within three