Indian Kanoon - Search engine for Indian Law

In village Bhikanpur Muntha, Ishtiyak Hussain (D-1), although was continuously elected village pradhan since last fifteen years but in the last election held two years ago to the present incident, he was defeated by one Chhatar Singh Jat supported by accused respondents. On the polling day in that election a tiradic altercation had occasioned in between(A1) and(A2) and(D-1) and this had impregnated a feeling of revengeful animosity in the minds of the accused respondents.

On the incident date 7.1.1990 at 2 P.M., Minzar Hussain informant (P.W.1) along with his father Ishtiyak Hussain (D-1), uncle Ishak Hussain (D-2), Gaffar, Zahid, Mohd. Alam (P.W.3) and Tasleem were proceeding towards Sunday market of Joya for purchasing cereals, vegetables and other commodities in the tractor trolley of Chhidda (injured/P.W.2) plied by (P.W.2) himself. After covering some distance from the village when the tractor trolley reached near the field of Fatte then, from the adjoining sugarcane field of Ram Pal, all the accused respondents, Irfan (A1)(armed with rifle) and rest of the accused respondents Aarif (A8), Laddan (A2), Babu (A3), Julfikar (A4) all sons of Nawab Jan, Afsar (A6), Kamrey Alam (A7) (sons of Afsar), Mohd. Islam (A5) all residents of village Bhikhanpur Muntha and accused-respondents Julfey (A10) and Rabbu (A9), both sons of Bhoore and Naushad (A11) (all the three residents of village Munda Ikiya, P.S. Didauli, Moradabad) armed with country made pistols with Laddan (A2) having a country made rifle came out firing and approached towards the trolley. They challenged to stop the tractor but Chhidda (P.W. 2) did not adhere to the challenge. On this, accused respondent Julfey (A10) fired at him, which caused a grazing gun- shot injury on the forearm of Chhidda (PW2). Sustaining injury, Chhidda (P.W. 2) stopped the tractor. All the accused then surrounded the tractor trolley. Irfan (A1) vetuparised Ishtiyak Hussain (D-1) and said that chairman will not to be left alive today as he brazen out very much and thereafter he instigated rest of his associates to annihilate him. All the accused respondents then pulled down (D-1) from the tractor trolley and dragged him to 8-10 paces in nearby field of Fatte where Rabbu(A9) and Kamrey Alam(A7) caught hold(D-1) from both of his hands and(A1) shot him dead inflicting riffle shot injury on his chest.(D-2), uncle of informant(P.W.1) in a lifesaving attempt tried to jump out from the tractor trolley but was caught hold of by accused respondents Aarif(A8) and Julfikar(A4) who both dragged him also to the same field of Fatte, near the spot where(D-1) was shot dead, and accused respondent Laddan(A3), from his CMP riffle shot him dead. All the assailants thereafter chased informant(PW1) but he sprinted and concealed himself in the sugarcane field. Other accompanying witnesses standing in the trolley jumped over from it and raced towards the village. Concealing himself,(PW1) measured a distance of 4½ KMs, came to the police station Didauli and there purchased a plain paper from an outside shop, slated incident FIR Ext. Ka-1, and lodged it at the police station Didauli same day at 3.30 P.M. Constable Moharir Raj Pal Singh(C.W.1) registered the offence on the strength of Ext. Ka-1 as crime no.2 of 1990,u/s 147, 148, 149, 307, 302 I.P.C. by preparing chik FIR Ext. Ka-23 and crime registration GD Ext. Ka-24.

Regarding the tractor, informant testified that the tractor belonged to the injured witness Chhidda(PW2) and on the mud-guard there was no seat. The deceased and the informant all were in the trolley and when tractor was forced to be stopped all of them had stood up in the trolley. Accused had come out from the field of Ram Pal resorted to firing to stop the tractor without causing injury to anybody and trolley was cordoned off by them disallowing anybody to escape. Fire was made at (PW2) from 5/6 paces causing him injury on his right forearm to compel him to stop the tractor. Informant further testified that some of the accused remained on the ground and some had climbed on the trolley and 2/ 3 accused had caught hold of (D-1) and had tried to drag him. Terrorized witnesses could not muster courage to stop the assailants as they were carrying firearms in one hand and were pulling(D-1) from the other. At that moment, no dragging injury was sustained by the deceased (D-1), who was trying to get himself freed. This tug of war continued only half a minute. Clothes of the deceased were not torned off.(D-1) had not fallen in the tractor trolley and after being pulled down he was dragged 8 to 10 paces in the field of Fatte where(A7) and (A9) held him by his hands and (A1) shot him dead from a very close quarter of only two and a half feet. After murdering (D-1) assailants returned to the trolley after a quick gap of 25 seconds and then dragged (D-2) to the same field where he was also shot dead by (A2) when (A4) and (A8) had held him by his hands. Thus what is apparent from such depositions are that the entire incident must not have taken more than a few minutes to be over. Informant had further deposed that the assailants had approached to annihilate him also but he jumped out of the trolley and escaped in the sugar cane field. During the incident accused were threatening the witnesses. This witness was also subjected to cross examination on relationships inter se most of which he had denied. Some enmity between the deceased and the other persons were also asked from him. Some of which he has admitted while denying the rest. Omissions in his statement to the I.O. were put to him and in reply thereof he had expressed his ignorance as to why they were not slated down. These omissions, in our opinion, are trivial and insignificant and do not corrode main substratum of the prosecution allegations, like he had not spelt out the names of the assailants who had climbed on the trolley and who had pulled down the two deceased or has not named who had dragged the deceased to the field of Fatte so on and so forth. Informant (P.W.1) further evidenced that after saving himself he did not return to the trolley and had proceeded straight for the police station where he had reached in 1 ½ hours. From a shop outside the police station, he had purchased a plain paper and on it he had scribed Ext. Ka-1 in 22 to 25 minutes.(P.W.1) further testified that he stayed in the police station for about 4/5 minutes. After he was interrogated by the I.O. and his statement was noted down that he had returned to the incident spot along with the I.O. in his jeep. He made a categorical deposition that no blood had tickled down in the trolley during the incident and by the same trolley both the corpses were sent to Moradabad after inquests were over and he had accompanied both the deceased. They had arrived at Moradabad at 8.30 P.M., where he had stayed over- night at the mortuary, which was nearby district jail. He confirmed of his being a panch witness in inquest proceedings and had signed inquest memos and had noted his opinion on it. He further stated that he had seen the injuries of the injured witness Chhidda/(PW2), which was on the outer aspect of his right wrist. According to this witness clothes of Chhidda/(PW2) were not stained with blood and he could not inform whether they had pellet marks on it or not? Informant/(PW1) emphatically denied defence suggestion that both the deceased were shot dead at a lonely place at an unknown time by unknown assailants and he was not present during the incident and (PW2) had also not sustained any injury during such an incident and his injury was got manufactured and he was got medically examined subsequently only to give colour to the incident. He also denied that his FIR was not recorded as alleged by him and subsequently in consultation with the police the same was fabricated and concocted. He also denied that he was not present at the spot and subsequently was summoned by the police and the bodies were detained at the police station to concoct a case.

Chhidda (P.W. 2), the sole injured witness in the incident, corroborated informant/(PW1) on all the material and significant aspects of the incident and narrated the same version as that of the informant. On those aspects he had not erred or faltered to make the prosecution version suspect and doubtful. He rejuvenated date, time and place of the incident, presence of the informant, the deceased and the witnesses in his tractor trolley and in no uncertain terms deposed that he was plying the tractor at the time of the incident. He has repeated the names and weapons of all the accused respondents. Pertaining to the actual incident, he has corroborated (P.W.1) in full and hence , for the sake of brevity, we eschew from penning it down his depositions in extenso. (P.W.2) is clear and unambiguous that(D-1) was shot dead by (A1) whereas (A2) shot dead(D-2). Rabbu(A9), Kamrey Alam(A7), Aarif(A8) and Julfikar(A4) had caught hold of the two deceased in pairs. He has made a clear statement that Gaffar is his real brother and he had not fielded any candidate in the election. He further testified that all of them had started for Joya market 2/ 3 hours after taking lunch and both the dead bodies were transported to Moradabad in his tractor trolley. He had sustained grazing fire arm injury while he was plying the tractor and the shot was fired from western side by the shooter from a distance of 22/ 25 paces and he had sustained injury while he was sitting at the driver's seat and was facing towards south. Unlike (PW1), according to (PW2) some blood had oozed out which had stained his cloths. He had further deposed that when both the deceased were dragged to the field of Fatte at a distance of 10 paces and were done to death then all the accused had accompanied both (D-1) and (D-2) and meanwhile he (PW2) continued to sit on his driver's seat and was being threatened. Thus this witness confirmed the distance between tractor and the field of Fatte. Injured (PW-2) further deposed that 1 ½ seconds had taken place in annihilating both the deceased. He further disclosed that it was only after informant had escaped that he too had jumped down from the tractor and had raced to save his life. Regarding omissions in his earlier statements he could not state the reasons for the same. He further disclosed that when informant jumped down from the trolley and escaped then none of the culprits was near the trolley but he was chased by 3/4 murderers. He denied the defence suggestion that no such incident as alleged by him had occurred and on the date of the incident he was not going to Joya with the tractor trolley and he had not sustained any injury as alleged and he had got his injury report manufactured in connivance with the informant as he belonged to the party of the deceased Ishtiyak (D-1).

Attour defence has failed to dislodge or rebut prosecution allegation of deceased, injured and informant proceeding to Joya market on the tractor trolley plied by the injured. Tractor trolley was seized by the police and recovery memo in that respect was prepared and duly proved and exhibited in the trial which lend credence to the prosecution story. No alternative place or manner of incident has been suggested by the defence to discredit prosecution allegations. More over by induction of a tractor trolley into the episode prosecution does not gain any mileage. Informant would have been the last person to feign a story of introducing a tractor trolley in the incident. He could have fabricated another version with even more clinching and appealing narrations. Since no time was left with the informant to single handedly cook up a story, we find trial Judge's approach wholly perverse and unsustainable and it is quite evident that neither the F.I.R. was ante-timed nor it was fabricated and it is worthy of acceptance as a genuine piece of corroborative evidence. The whole approach by the learned trial Judge seems to be lop sided and he has conferred unwarranted benefits on the accused on the premium of trivialities while passing the impugned judgment and order. We therefore reject such an approach and infer to the contrary.