Abdul Waheed and Others vs State of U.P.

M.C. Jain, J.—This appeal has been preferred by eight Appellants. They are: (1) Abdul Waheed (2) Vakil Khan, (3) Abdul Hai, (4) Babu Khan, (5) Mukhtiyar, (6) Javed Khan, (7) Shafiq Khan, and (8) Mohd. Hafeez. The judgment assailed in the appeal has been rendered by Sri B. B. Khare, the then I Ind Additional Sessions Judge, Farrukhabad on 31.3.1981 in Sessions Trial No. 274 of 1975. The accused-Appellants-Abdul Hai, Abdul Waheed and Shafiq have been convicted u/s 148, I.P.C. and each of them has been sentenced to two years'' rigorous imprisonment. For the offence of rioting, the remaining five accused-Appellants have been convicted u/s 147, I.P.C. and each sentenced to undergo rigorous imprisonment for one year. Abdul Waheed has further been convicted u/s 302, I.P.C. for the murder of Abbas Khan and sentenced to life imprisonment. The remaining seven accused-Appellants have been convicted for the murder of Abbas Khan u/s 302 read with Section 149, I.P.C. and each sentenced to life imprisonment. Then, all the eight accused-Appellants have been convicted u/s 302 read with Section 149, I.P.C. for the murder of Israr Khan and u/s 323 read with Section 149, I.P.C. for causing injuries to Ashfaq Khan, Ishtiyaq, Subrati and Razzak Khan with sentence of life imprisonment for the former offence and one year''s rigorous imprisonment for the latter. The sentences awarded to each individual accused have been ordered to run concurrently.

The incident took place on 5.11.1974 at about 8 p.m. in village Sarfabad at a distance of 4 miles from P. S. Kamalganj, district Farrukhabad. The report by oral narration was lodged by Razzak Khan P.W. 1 at the concerned police station the same night at 10.50 p.m.

The broad features of the case as coming to surface from the F.I.R. and the evidence adduced at the trial may be set forth. The accused persons are either khandanis or friends. The accused Abdul Waheed had constructed his residential house after demolishing the village panchayat ghar. The informant and other villagers complained about it to the village Pradhan Abdul Rauf. However, he was under the influence of Abdul Waheed and remained silent over the matter, not taking any note of the complaint made to him. Then, the informant''s brother Abbas and his cousin brother Shabbir filed a civil suit in the Court of Munsif in that regard about 6 months before the present incident. Temporary injunction and commission were issued in that case. However, despite service of the injunction order, the accused-Abdul Waheed did not desist from his action and continued to construct his residential house by demolishing the panchayat ghar. Abbas and Shabbir then moved the Munsif''s court for taking action against him for the disobedience of the injunction order, 6.11.1974 was fixed in that matter. Abdul Waheed became increasingly annoyed with Abbas and Shabbir. In the fateful night at about 8 p.m. (on 5.11.1974) Razzak Khan informant P.W. 1, Abbas, Israr and Subrati were sitting on the well and were talking about the date in the aforesaid civil suit. A lantern was glowing in the chhappar (thatch) of Abbas. The accused persons came over there hurling abuses and held out that they would kill anyone who would go for pairvy of the said case. Abbas protested and retorted that the had filed the suit and would also do the pairvi in the case which was pending before the Court and they (accused) should not lose their cool. Enraged, Abdul Waheed gave out that he would see Abbas then and there irrespective of the litigation. Abdul Waheed, Abdul Hai and Shafiq Khan accused were armed with guns and the rest had lathis and dandas with them. Hearing the hue and cry, Ashfaq, Ishtiyaq, Yasin Khan, Ali Daraj Mohd, Yaseen and others arrived at the scene and advised Abdul Waheed to let the law take its own course and the litigation be decided by the Court Abdul Waheed and Shafiq Khan then gave a call of exhortation, whereupon Babu Khan, Vakil Khan, Mukhtiyar, Javed and Mohd. Hafeez started assaulting Abbas and others with lathis and dandas. Ishtiyaq and Ashfaq then also plied lathis from the side of the complainant in self-defence. The accused Abdul Hai, Abdul Waheed and Shafiq then told their companions to move aside and that they themselves would kill and finish the matter. So saying, these three opened fire from their guns. The shot fired by Abdul Waheed hit Abbas, Israr was also hit by the fire. Abbas fell down at a distance of about 10-15 paces and died a little later. The accused persons then ran away.

On the lodging of the F.I.R., Head Constable Chatur Singh P.W. 5 wrote down the chik F.I.R. and made entry in the G. D. registering the case. Razzak Khan P.W. 1 had also collected three fired cartridges from the spot which he had taken to the police station and deposited there. The same were sealed at the police station by Head Constable Chatur Singh P.W. 5.

The investigation of the case was entrusted to S.I. Visheshwar Singh P.W. 7 who was present at the police station at the time of the lodging of the F.I.R. He recorded the statement of Razzak Khan informant P.W. 1 and other injured witnesses who had been taken there. He reached the spot on 6.11.1974 and busied himself with the activities connected with the further investigation of the case like preparing of the site plan and inquest report of the dead body of the deceased. He took search of the houses of the accused Abdul Hai and Shafiq and took their licensed guns in his possession and sealed them with the preparation of fards. Blood stained and simple earth was collected by him from the spot. He also took in his possession the licensed gun of Abbas, deceased and deposited the same at the police station. The statements of other witnesses were recorded by him. He also made a report for sending the licensed guns of Abdul Hai and Shafiq, which had been collected by him, with fired cartridges (deposited at the police station by the informant) to the ballistic expert for comparison.

Dr. G. M. Solanki P.W. 2 had examined injuries of Ashfaq, Ishtiyaq, Subrati and Razzak on 6.11.1974 between 8.45 a.m. and 10 a.m. The details of the same are given below:

Ashfaq Khan Abraded contusion 1" x 7/10" on forehead, extending upward from right eyebrow. Scab formation present. Injury simple in nature and caused by friction and with blunt object. Duration about one day.

Ishtiyaq Khan Lacerated wound 9/10" x 1/10" in mid line of scalp, 2-1/2" above the root of nose. Clotted blood present. Injury simple in nature and caused by blunt object. The duration was about half-day.

Subrati (1) Lacerated wound 1-1/2" x 4/10" x 4/10" on right side of scalp, 2" above the right eyebrow. Clotted blood present.

(2) Abrasion 3/10" x 1/2" on left side of head. 1-1/2" above the left eyebrow. Scab formation present.

(3) Contusion of 2" x 2-1/2" on anterior part of left forearm, extending downward from the elbow joint. Colour red.

(4) Abrasion of 8/10" x 1/2" on right medial mabalons Scab formation present.

According to the Doctor injuries No. 1 to 4 were simple in nature. Injuries No. 1 and 2 were caused by friction. Duration of the injuries was about half day.

Razzak Khan Abraded contusion 1-1/2" x 4/10" on left side of scalp 4-1/2" above the left pinna. Scab formation present. Injury simple in nature and caused by blunt object.

Israr Khan The injuries of Israr Khan were examined on 6.11.1974 at 1 p.m. in District Hospital, Fatehgarh by Dr. M. Z. Evat, Court witness No. 1 who was Medical Officer on emergency duty. The following injuries were found on his person:

(1) Gunshot wound 1/4" x 1/4" x skin deep on right side front of chest, 1/2" internal to nipple. No blackening or tattooing.

(2) Two gunshot wounds, each measuring 1/4" x 1/4" x skin deep on the outer aspect of right arm in the middle.

(3) Three gunshot wounds, each measuring 1/4" x 1/4" x skin deep on the outer aspect of right forearm each 3" apart.

(4) Multiple gunshot wounds, each measuring 1/4" x 1/4" x skin deep to abdominal cavity deep on the lateral aspect of right side lower part abdomen and reaching upto right ingenial region. No blackening or tattooing was seen.

All the injuries were simple except injury No. 4, which was kept under observation. X-ray of abdomen, right lateral and lower part including ingenial area was advised. Injuries were caused by firearm duration of which was one day.

Israr Khan was admitted as indoor patient in District Hospital, Fatehgarh.

Dr. Sabir Hussain P.W. 12, the then Medical Officer at District Hospital Fatehgarh advised X-ray of lateral view of his abdomen on 8.11.1974. On 18.11.1974 he was discharged from the hospital. On 24.11.1974, he was again admitted in the hospital but he left the hospital on his own accord on 26.11.1974. A note was then made on his bed head ticket by Dr. Sabir Hussain P.W. 12 that he had absconded. He was again admitted in the hospital on 14.12.1974 on account of intestinal obstruction. On 16.12.1974, his dying declaration was recorded in District Hospital, Fatehgarh, by S.D.M. Sadar, Vinay Kumar-P.W. 13, whereupon Dr. Sabir Hussain P.W. 12 had given certificate that he remained in full senses from the beginning to the end of his dying declaration. Israr Khan then died on 18.12.1974 at 6.30 a.m. A note to this effect was made on his bed head ticket by Dr. V. B. Bansal, the then Medical Officer, District Hospital, Fatehgarh. The information about his death was sent to S.O. Kotwali, Fatehgarh, the same day. Inquest report was prepared by the Sub-Inspector of P.S. Kotwali.

Post-mortem over dead body of Israr Khan was conducted by Dr. S. Tandon P.W. 10 on 18.12.1974 at 4 p.m. About half day had passed since he died. The doctor did not find any fresh ante-mortem injury on his dead body but noted the marks of healing scars of multiple gunshot wounds on the following parts of the body:

(1) Right lower part abdomen.

(2) Right from chest.

(3) Right middle arm.

(4) Right forearm.

On internal examination, peritoneum was found inflamed and thick. Abdominal cavity was full of about 1-1/2 pounds of pus. Stomach was empty and evidence of inflammation was present Small intestine had evidence of gangrene. Large intestine was inflamed and empty. Gall bladder was congested and inflamed. Pancreas was also inflamed. Bladder was empty with the evidence of pus on its wall. In the opinion of the Doctor, the death of the deceased had occurred due to shock as septic peritonitis, which according to the Doctor, could have developed for want of proper treatment of injuries. Injuries No. 1 and 2 were on the vital parts of the body (abdomen and front of chest).

It should also be related here for the sake of clarity that post-mortem over the dead body of Abbas Khan was conducted on 6.11.1974, itself at 4.10 p.m. by Dr. H. D. Gupta, Superintendent District Hospital, Fatehgarh. The said Doctor having died, the post-mortem report prepared by him was proved by Dr. S. Tandon P.W. 10. According to the post-mortem report, the death had taken place about half day before. The deceased was aged about 40 years. Rigor mortis was present all over the body. The following ante-mortem injuries were found on his person.

(1) Gunshot wound 1-1/2" x 1/2" x bone deep on the front and inner side of right upper arm, 3-1/2" above elbow with fracture of the shaft of humerus bone and underneath its multiple pieces, were present.

(2) Multiple gunshot wound of exit of varying dimensions from 1/8" x 1/8" to 1/10" x 1/10" in an area of 6" on the back outer side of lower middle part of right upper arm with everted margins.

(3) Abrasion 1/2" x 1/2" on the right side of tip of nose.

On internal examination, stomach was found to contain 4 ounce of semi digested food. Small intestine were half full. Large intestine were empty. 12 shots were recovered from the wounds. As per the report, the death had occurred due to shock and haemorrhage as a result of ante mortem injuries found on the dead body.

Three cartridges deposited at the police station by the informant while lodging the F.I.R. were sent to the ballistic expert for reporting whether the same were fired from any of the firearms seized from the possession of the accused Abdul Hai and Shafiq. The ballistic expert V. Roy P.W. 8 gave report opining that the fired cartridge marked by him as Exh. 5/1 had not been fired by any of the two guns. However, the other two cartridges marked by him as Ext. 5/2 and 5/3 had been fired by the single barrel gun No. 369669, which was seized from the possession of Abdul Hai accused.

Dr. G. M. Solanki P.W. 2 had examined the injuries of accused Mohd. Hafeez Khan and Vakil Khan on 6.11.1974 at 11 a.m. and 11.30 a.m. respectively. It may be related here that they had been arrested by the Investigating Officer S. I. Visheshwar Singh P.W. 7 on 6.11.1974 and rest of the accused had surrendered in the Court. The following injuries were found on the person of accused Mohd. Hafeez Khan.

(1) Lacerated wound of 1-1/8" x 2/10" on right side of scalp, 3-1/2" above the right pinna. Clotted blood present.

(2) Contusion of 1/2" x 4/10" on upper part of right shoulder. Scab formation present.

(3) Contusion of 7/10" x 1/2" on dorsum of right hand, 1" above the metacarpal phalangeal joint of index finger. Colour red.

Injuries No. 1 to 3 were simple in nature, caused by blunt weapon. Duration was about half day.

On the person of Vakil Khan the following injuries were found.

(1) Lacerated wound 1-1/2" x 1/10" x 1/10" on right side of scalp, 4" above the right pinna. Clotted blood present.

(2) Contusion 2" x 1" on upper part of right shoulder. Colour red.

(3) Contusion 1-1/2" x 6/10" on ulna''s border of left hand extending from left wrist joint. Colour red.

These injuries were simple, caused by blunt object and about half day old.

All the accused pleaded not guilty and denied the various charges framed against them. The accused Vakil Khan stated u/s 313, Cr. P.C. that he was sitting on the chabutara (Platform) of his nephew Shafiq. Abbas Khan armed with gun, Israr Khan armed with pistol and Razzak Khan, Iqrar Khan, Ashfaq Khan, Mukhtiar, Shahid, Zahid, Jalil, Mohd. Amin, Mohd. Sher and Ahmed Sher armed with lathis came over there and challenged him that in case his brother Waheed was to go for the pairvy of the case, he would be killed. Heated exchange of words took place. Earlier, dacoity had been committed at his house several times. So the villagers thought that dacoits had again come there. Abbas Khan then fired while his other companions plied lathis, resulting in injuries to him. Hafeez and others. He and Shafiq then went to the police station but the Head Constable made them to sit there, saying that report would be written only on the arrival of Darogaji. He then came back and gave a telegram. He thereafter went to the hospital but the Doctor told him to bring the memo from the police station for examining his injuries. He then went to the police station but he was again made to sit there. When at about 9 a.m. Daroga came with Abbas etc. a false case was concocted and he was falsely implicated in the crime.

The prosecution in all examined 13 witnesses out of whom, Razzak Khan informant P.W. 1, Yasin Khan P.W. 3 and Daraj Khan P.W. 4 were witnesses of fact. Out of them, Razzak Khan was himself an injured also. The accused examined two witnesses in defence, namely, Diwakar D.W. 1 and Alimuddin D.W. 2. Diwakar D.W. 1 proved the writing Exh. Kha-5 alleging the same to be in the handwriting of his uncle Ram Dulare who was Secretary of Gram Panchayat, since dead, Alimuddin D.W. 2 was examined to prove the counter version of the occurrence.

We have heard Sri G. S. Chaturvedi, learned senior advocate for the Appellants, Sri A. K. Dwivedi, learned A.G.A. from the side of the State and Sri S. A. Shah learned Counsel for the complainant. We have also perused the record with great care.

The first submission of Sri G. S. Chaturvedi is that admittedly the record of the trial giving rise to this appeal got lost and the reconstructed record is inadmissible in evidence for the reason that there is no explanation as to from what source reconstruction has been made. It is urged that there is no certainty or even positive information about the authenticity or genuineness of the reconstructed record. The reconstructed record is not complete also as site plan, post mortem report and some other important documents are still missing. Placing reliance on the decision of the Supreme Court in the case of State of U.P. Vs. Abhai Raj Singh and Another, , he has urged that a retrial should be ordered. On the other hand, the learned A.G.A. and learned Counsel for the complainant have argued that the reconstructed record being there having been transmitted to this Court by the District and Sessions Judge, Farrukhabad, there is no need whatsoever to order a retrial. According to them, the Appellant simply want to unnecessarily complicate the matter so as to take advantage of long lapse of time that has passed since the incident occurred. We have carefully considered the controversy raised regarding the reconstructed record. We note that the District and Sessions Judge concerned reported on 10.9.1999, that the record had been reconstructed. He transmitted the photostat copy of the same. We also find that Mushtaq Khan son of the complainant Razzak Khan had submitted the copies of the statements of the witnesses, copy of the panchayatnama etc. before the District and Sessions Judge concerned with his application dated 19.5.1999, Razzak Khan complainant had died by then. Naturally, his son submitted the copies of the statements of the witnesses etc. when notices were issued to all concerned for the reconstruction of the record. It is also noted from the order sheet of the file of appeal dated 13.12.2002, that learned Counsel for the Appellants stated that he had to get it verified that the reconstructed record represents the actual record. He prayed for the copy of the same to be supplied to him. The copy was supplied to him. To get to the bottom of the truth, it was also directed that a letter be sent to the District and Sessions Judge concerned to send the record, if any, kept there on the basis of which reconstruction had been made. It is found that the reconstructed record had been sent to this Court with report dated 10.9.1999 by Sri K. D. Rai, the then District and Sessions Judge, Farrukhabad. In compliance of this Court''s order dated 13.12.2002, referred to above, the succeeding District and Sessions Judge, Farrukhabad Sri Sachchidanand Shukla by his letter dated 24.1.2003 reported that the record of non-judicial inquiry No. 1 of 1999 (which was held for the lost record) was not capable of illustrating any basis of the reconstruction of the file but on the basis of correspondence available on non-judicial inquiry file, it transpired that by procuring different material from police station. from counsel of the accused persons and from the prosecutor including the District Government Counsel (Criminal), whatever papers were found available, they were collected and were transmitted to this Court by way of reconstructed file. From this letter of the succeeding District and Sessions Judge, learned Counsel for the Appellants wanted to infer that there was no proof as to on what basis the record had been reconstructed.

It is not possible to reach any such conclusion on consideration of the report of the then District and Sessions Judge, namely, Sri K. D. Rai, dated 10.9.1999, whereby he transmitted the reconstructed record and from the subsequent report of the succeeding District and Sessions Judge. Rather it is manifest that the record has been reconstructed by collecting material from the sources where it could be available. As we said above, Mushtaq Khan son of the complainant Razzak Khan submitted the copies of the statements of witnesses and certain other papers with his application dated 19.5.1999 for the reconstruction of the record. We also note that the learned Counsel for the Appellants has not been able to point out any mistake or inaccuracy in the reconstructed record. Nor has any inaccuracy been pointed out in the facts recorded by the trial court in its judgment dated 31.3.1981, which is impugned in this appeal. Indeed, the accused could have produced their own copies of the statements of witnesses supplied to them by the trial court and other documents during committal proceedings. By doing so, they could show inaccuracy (ies), if any, in the statements of the witnesses and other documents sent by the District and Sessions Judge in the form of reconstructed record. They did not do anything of the kind and simply want to take advantage of unsubstantiated contention that the reconstructed record is inadmissible. The memo of appeal is equally silent in this regard. The only grounds taken to assail the impugned judgment are that the same is against the weight of evidence on record ; that no offence is made out from the evidence on record and that sentence of the Appellants is too severe. On consideration of the objection raised by the learned Counsel for the Appellants, we do not find it to have any substance.

The incident took place nearly 30 years back on 5.11.1974. The reconstructed record is there including the statements of witnesses which correctly reflect the prosecution case and the defence version. The same, on examination in the light of the discussion made in the impugned judgment, would serve the purpose of the appeal being decided on merits with consideration of the arguments made from both the sides. There is no need, whatsoever, to order a retrial after about 30 years of the incident. It is wholly unnecessary and instead of rendering any help, it would simply complicate the matter. The complainant himself has also died. The accused-Appellants think that retrial would place insurmountable difficulties for the prosecution in proving its case against them of which they would, undoubtedly, be the beneficiaries. They are simply insisting for retrial without showing any inaccuracy in the factual, documentary and medical evidence as referred to in the judgment of the trial court. The findings and conclusions, of course, are to be tested in appeal. In the ruling relied upon by the learned Counsel for the Appellants, the first course directed to be adopted by the Apex Court is the reconstruction of the record which has already been made in the present case. It is only when the reconstruction is not possible that a retrial is to be ordered. Therefore, rejecting the submission of the learned Counsel for the Appellants to direct retrial, we proceed to decide the appeal on merits as reconstructed record is there.

Proceeding further, we should say that during the pendency of the appeal, three Appellants, namely, Vakil Khan, Abdul Hai and Shafiq Khan have died. The appeal has abated respecting them as per order dated 23.1.2004.

In this case, presently, this appellate court is concerned with the remaining five Appellants, namely, (1) Abdul Waheed (2) Babu Khan, (3) Mukhtiyar, (4) Javed Khan, and (5) Mohd. Hafeez Khan. As on merits, the argument of the learned Counsel for the Appellants is that actually the prosecution side was the aggressor. In that incident Abbas Khan fired while his other companions plied lathis resulting in injuries to Vakil Khan, Mohd. Hafeez and others. Vakil Khan and Mohd. Hafeez raised shouts. The villagers thought that dacoits had come. There was a scramble with pelting of stones and firing. As such, the accused-Appellants did not commit any offence within the ambit of law. Per contra, the learned A.G.A. and the learned Counsel for the complainant have vehemently, argued that there was strong motive on the part of the accused-Appellants to commit this crime. They formed an unlawful assembly in prosecution of common object of which two murders of Abbas Khan and Israr Khan were committed and injuries were caused to Razzak Khan, Shafiq Khan, Ishtiyaq Khan and Subrati. According to their contention, the prosecution successfully brought home the guilt of the accused-Appellants. They, thus supported the impugned judgment.

We have carefully examined the evidence on record. Admittedly, the accused-Appellants Abdul Waheed and Babu Khan are brothers. Accused-Appellants Vakil Khan and Abdul Hai (deceased-Appellants) were also their brothers. Mukhtiyar and Javed Khan are the nephews of the deceased Abdul Waheed. Hafeez Khan is admittedly their khandani and the decease Appellant Shafiq Khan was the father of Hafeez Khan. This way, the accused-Appellants are either family members or khandani and thus well knit. It is also an admitted fact that an incident of violence took place on the date and time alleged by the prosecution. It is also crystal clear that Abbas Khan died of gunshot injuries at the spot and Israr Khan also happened to die on 18.12.1974 owing to gunshot injuries sustained by him in this incident. The injury reports of four others on the prosecution side, namely, Razzak Khan P.W. 1, Ishtiyaq, Ashfaq Khan and Subrati show that they sustained injuries of blunt weapons. They were medically examined on 6.11.1974 between 8.45 a.m. and 10 a.m. Two on the side of the accused-Appellants, namely, Vakil Khan (now dead) and Hafeez Khan also sustained injuries of blunt objects. Three accused-Appellants, namely, Abdul Waheed, Abdul Hai and Shafiq Khan were allegedly armed with firearms whereas the remaining five had lathis. As is clear, the parties have given counter version of the occurrence, branding each other to be the aggressor.

It appears to us that there was a strong motive on the part of the accused-Appellant Abdul Waheed in association of his other associates to commit the crime. It is gathered from the testimony of Razzak Khan P.W. 1 that Abdul Waheed accused had demolished panchayat ghar of the village and when his brother Abbas Khan and Shabbir protested, Abdul Waheed hurled abuses. Abbas then complained about it to Pradhan but the latter being under the influence of Abdul Waheed, did not take any action in the matter. Abdul Waheed started constructing his house at the site of panchayat ghar and then Abbas Khan deceased and Shabbir filed a civil suit in the Court of Munsif, Farrukhabad, for permanent injunction. It is categorically recorded in the judgment of the lower court that a copy of the plaint of the aforesaid Civil Suit No. 110 of 1974 filed under Order I, Rule 8, Code of CPC had been filed. The testimony of Razzak Khan P.W. 1 was also there that temporary injunction had been issued against Abdul Waheed. The copy of the order dated 17.4.1974, had also been filed by the prosecution. It is so specifically mentioned in the impugned judgment that the order showed the issuance of notice to Abdul Waheed and in the meantime issuance of temporary injunction directing the maintenance of status quo. The testimony of Razzak Khan P.W. 1 was that in spite of temporary injunction, Abdul Waheed continued to construct his house at the site and, therefore, the Plaintiffs of the suit moved an application for taking action against Abdul Waheed for breach of injunction order. His this statement also found corroboration from Ex. Ka-42 which was a copy of the application dated 6.5.1974, moved by Shabbir, one of the Plaintiffs, against Abdul Waheed. The statement of Razzak Khan P.W. 1 was that 6.11.1974 was the date fixed for hearing in the said litigation. The incident took place at about 8 p.m. on 5.11.1974. Obviously, Abdul Waheed was annoyed in extremity that his adversaries Abbas Khan and Shabbir were driving him to the wall by doggedly pursuing the civil suit filed by them concerning the construction of the house over the panchayat ghar. He and other accused were a well knit group backing each other''s cause, right or wrong. So, they committed this crime.

We may point out that it has come down in the testimony of Alimuddin D.W. 2 also that adjacent to the house of Abbas was the house of Shafiq. It would be recalled that the version of Razzak Khan P.W. 1 was that he, Abbas Khan, Subrati and Israr were talking of the said case sitting on the chabutra of the well situated in front of the house of Abbas Khan when all the accused persons came there. A glowing lantern was there on the outer side the chhappar of Abbas. Abdul Waheed then accosted Abbas Khan that if anyone from his side would go for the pairvy of the case, that would result in bad consequences. An altercation ensued. Abdul Waheed, Abdul Hai and Shafiq Khan had guns whereas the remaining five accused (he has named all of them) had lathis/danda. Abdul Waheed then called his lathi bearing companions to thrash them. They launched the assault. Ishtiyaq Khan and Ashfaq arrived and plied lathis in defence. On hearing hue and cry. Yasin and Ali Daraj also arrived. After a while, Abdul Waheed commanded his lathi bearing companions to move aside, saying that he himself would finish them all. His lathi bearing companions kept aside and Abdul Waheed instantaneously fired on Abbas. Abdul Hai and Shafiq Khan also opened shots. Abbas died instantaneously of the shot fired by Abdul Waheed. Israr Khan sustained injuries of the shots fired by Abdul Hai and Shafiq Khan. It would be recalled that he subsequently died on 18.12.1974.

Razzak Khan P.W. 1 has been supported by Yasin Khan P.W. 3 and Daraj Khan P.W. 4, the names of both of whom find place in the promptly lodged F.I.R. They were present at the house of one of them. Yasin Khan which was 30-35 paces away from the house of Abbas Khan. On hearing the hue and cry, emanating from the side of the house of Abbas Khan, they had reached there and witnessed the occurrence. They corroborated the statement of Razzak Khan P.W. 1 in material particulars. Despite searching cross-examination, these two witnesses could not be shown to be related to the informant or inimical to the accused persons. No doubt, the house of Ali Daraj was away from the place of occurrence, but he explained that at the fateful time, he was present with Yasin Khan at the house of the latter. It was time of about 8 p.m. It is not uncommon for the villagers to assemble at each other''s place for socializing in the evening time when they are not at work.

It may be stated at the risk of repetition that Abbas Khan had received an arasion also on his person. In all, four persons, namely, Razzak Khan, Ashfaq Khan, Ishtiyaq and Subrati sustained seven blunt weapon injuries when the assault was lunched by the five lathi bearing companions of Abbas Khan. Shooting by Abdul Waheed, Abdul Hai and by Shafiq Khan was subsequent to the assault by lathi. Shooting was resorted to by these three when Abdul Waheed had asked his lathi bearing companions to move aside in command of which they had done so as per the own prosecution case.

So far as the injuries of accused Mohd. Hafeez and Vakil Khan are concerned, each of them received three simple injuries of blunt weapons as per their injury reports reproduced above. Their such injuries have very well been explained by the prosecution. On hearing hue and cry, besides others, Ishtiyaq and Ashfaq had also arrived as per the prosecution evidence and they had plied lathis in defence. It is important to note that Ishtiyaq Khan and Ashfaq Khan themselves are injured and it guarantees their presence. As a result of lathi blows given by Ishtiyaq and Ashfaq in self-defence, accused Hafeez and Vakil Khan could have received injuries at their hands. The fact that they plied lathis in self-defence, is there in the F.I.R. itself which is the first version from the side of the prosecution. It is thus clear that the prosecution version of the incident as given by Razzak Khan P.W. 1-injured and supported by the two eye-witnesses named in the F.I.R. finds corroboration from medical evidence. They have also given plausible explanation of the simple injuries of accused Vakil Khan (now dead) and Hafeez Khan. The explanation is to be found right from the lodging of the F.I.R. till the furnishing of proof in the Court.

The defence version that the prosecution side was the aggressor does not stand a close scrutiny. According to the defence suggestion to the prosecution witnesses, the occurrence had taken place at the chabutra of Shafiq Khan accused. If it were so, then it was expected that some blood would have also been found near the chabutra of the house of Shafiq but no blood was found there by the Investigating Officer. Further, as recorded by the learned trial Judge in paragraph 61 of the impugned judgment, a telegram Ex. Kha-4 was alleged to have been sent to S. P., Fatehgarh by Vakil Khan (now dead). According to it, he was sitting on the chabutara of his nephew, when Abbas Khan happened to come there and asked him that if his brother would go for the pairvy of the case, his hands and feet would be broken and he would be killed with firearm. Then an altercation ensued and Razzak Khan P.W. 1. Ishtiyaq etc. also arrived from the house of Abbas Khan. Abbas Khan then fired at him while others plied lathis on him. Some of them entered his house and started assaulting the inmates of the house. Then on the alarm raised by the family members, some persons arrived and fired shots. It was tried to be asserted that in those days dacoities were common in the village and consequently villagers fired shots under the impression that the dacoits had raided the village. In his statement u/s 313, Cr. P.C. also, Vakil Khan tried to give out the same version of the incident, though he did not say that any villager had arrived and fired shots.

As reference has come earlier also, Alimuddin D.W. 2 was examined to support the aforesaid defence version. It is noteworthy that though the telegram was detailed one and even the names of the witnesses were there, it did not state that Alimuddin was one of the witnesses who had arrived on hearing the hue and cry. It is equally important to find that Alimuddin D.W. 2 stated that he had narrated the incident for the first time in the Court. His statement was recorded on 12.11.1980, nearly six years after the incident. For all these years, he remained silent on the point and it itself made his statement highly suspicious. Moreover, according to the defence suggestion, the best armed persons were Abbas Khan and Israr Khan who had gun and pistol respectively. It does not have the attraction of logic at all that despite being armed with firearms, they fell prey of gunshot injuries without causing any firearm injury on the side of the accused. True, in the telegram relied upon by the defence it was alleged that some villagers had arrived who had fired, but it is significant that in his statement u/s 313, Cr. P.C., Vakil Khan only stated that some villagers had come at the spot under the impression that dacoity was being committed but did not say that the villagers had fired any shot. Alimuddin D.W. 2 also did not elaborate as to whose firing hit Abbas Khan and Israr Khan. Strangely enough, he had chosen to retire inside his house at the time of the alleged firing and to have allegedly heard the gunshots only from inside the house. As per Alimuddin D.W. 2, Abbas Khan, Israr etc. were 15 or 16 persons in number who were armed with firearm, spears, lathi etc. It is not acceptable that such number of persons heavily armed could succeed only in causing few simple blunt weapon injuries to Hafeez Khan and Vakil Khan. The defence version, on being dispassionately examined, is simply a cock and bull story put forward to defeat justice and to save the culprits (accused-Appellants) of the consequences of the crime committed by them. The truth of the matter is that the aggressors were the accused-Appellants and the accused Vakil Khan (now dead) and Hafeez Khan received minor simple injuries of blunt weapons at the hands of Ishtiyaq and Ashfaq Khan who plied lathis in lawful exercise of their right of private defence.

Dealing with the testimony of Diwakar D.W. 1, we should point out that he proved the receipt Ex. Kha-5 alleging the same to be in the handwriting of Ram Dulare who was Secretary of Gram Panchayat who had died. This document was said to be a receipt to back the contention that the land over which Abdul Waheed constructed his house, had been taken by him on patta. The said receipt is wholly irrelevant to throw any light over the actual incident.

In view of the above discussion, we endorse the finding of the trial Judge that the accused-Appellants were the aggressOrs.

Now, the pertinent question is as to what offence(s) had been committed by the accused-Appellants within the ambit of law. The accused-Appellants were eight in number. The consistent case of the prosecution as proved by the testimony of eye-witnesses is that the start of the assault had been made by the five lathi bearing accused-Appellants, namely, Vakil Khan, Babu Khan, Mukhtiyar, Javed Khan and Hafeez Khan at the command of Abdul Waheed. The remaining three, namely, Abdul Waheed, Abdul Hai and Shafiq were armed with guns from which they opened shots. This shooting took place after the assault by lathis had ceased at the behest of Abdul Waheed who had asked his lathi bearing companions to move aside, saying that he himself would finish them all. It has also clearly been admitted by the three eye-witnesses that on the command of Abdul Waheed, the lathi bearing accused moved aside. It was then that Abdul Waheed, Abdul Hai and Shafiq Khan opened shots from their guns. The shot opened by Abdul Waheed hit Abbas Khan who died at the spot. The shots of Abdul Hai and Shafiq Khan had hit Israr Khan who ultimately died on 18.12.1974. Abdul Hai and Shafiq Khan have since died. It manifest from the prosecution evidence that the object of the unlawful assembly in the beginning was to give a beating to Abbas Khan and others on the prosecution side to dissuade them from doing pairvy in the civil suit which had put Abdul Waheed in a tight corner. In prosecution of the common object of the unlawful assembly, the lathi bearing five members of the unlawful assembly launched the assault, causing injuries to Razzak Khan P.W. 1, Ashfaq, Ishtiyaq and Subrati. An abrasion had been caused to Abbas Khan also. The shots fired subsequent to the cessation on lathi assault were the individual acts of Abdul Waheed, Abdul Hai and Shafiq Khan. The lathi wielding accused-Appellants, namely, Vakil Khan, Babu Khan, Mukhtiyar, Javed Khan and Hafeez Khan cannot be deemed to be vicariously liable with the aid of Section 149, I.P.C. for causing the death of Abbas Khan and Israr Khan by the shooting resorted to by Abdul Waheed, Abdul Hai and Shafiq Khan. The mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141, I.P.C. It so happened that when Abbas Khan and others on his side retorted back and did not yield to the pressure of Abdul Waheed by agreeing to leave the pairvy of the civil suit even on assault by his lathi bearing companions, he (Abdul Waheed) took the command by asking his lathi bearing companions to move aside (who did so also). Then he, Abdul Hai and Shafiq Khan opened shots on Abbas Khan and Israr Khan.

As held by the Supreme Court in the case of Chanda and Others Vs. State of U.P. and Another, , the "common object" of an assembly is to be ascertained from the acts and language of the members composing it and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of the incident. The Apex Court has also held:

A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. There must be community of object and the object may exist only upto a particular stage, and not thereafter. Members of an unlawful assembly may have community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149, I.P.C. may be different on different members of the same assembly.

On analyzing the facts and evidence of the present case, we are of the clear view that the lathi bearing accused-Appellants, namely, Vakil Khan, Babu Khan, Mukhtiyar, Javed Khan and Hafeez Khan committed offences under Sections 147, I.P.C. and 323 read with Section 149, I.P.C. The firearm bearing accused-Appellants, namely, Abdul Hai and Shafiq Khan who opened shots hitting the victim Israr Khan (who ultimately died), having died during the pendency of appeal, it would be futile to record any finding as to the offences committed by them. So far as the accused-Appellant Abdul Waheed is concerned, he being armed with a gun, committed the offence of rioting, punishable u/s 148, I.P.C. and u/s 302, I.P.C. by shooting dead Abbas Khan which was his individual act. He is also guilty of offence punishable u/s 323 read with Section 149, I.P.C.

Learned Counsel for the Appellants urged that the gunshot fired by Abdul Waheed hit Abbas Khan on the upper arm which was not a vital part and as such, he cannot be deemed to be guilty of murder. We do not agree. When intention to kill is there and death takes place, it is always murder irrespective of the seat of injury. In the instant case, commanding lathi bearing companions to move aside. Abdul Waheed had instantaneously opened shot on Abbas Khan, killing him instantaneously. Abbas Khan was his sworn enemy having dragged him in civil litigation placing him in a tight corner. Immediately before shooting too, he had held out to finish him. His intention to kill him was very clear from his utterance also. Therefore, it is not at all material that the shot had hit the victim Abbas Khan on non-vital part. The test is that he had the intention to kill him and the death had occurred due to the shot he fired on him. The argument, therefore, is not acceptable that he committed the offence lesser than murder. He also committed the offence u/s 323 read with Section 149, I.P.C.

In the final result, we partly allow the appeal in this way:

(1) The accused-Appellants Vakil Khan, Abdul Hai and Shafiq Khan having died, the appeal abates so far as they are concerned.

(2) The accused-Appellant Abdul Waheed stands convicted under Sections 302, 148 and 323 read with Section 149, I.P.C. with sentence of life imprisonment u/s 302, I.P.C., sentence of one year''s rigorous imprisonment u/s 148, I.P.C. and six months'' rigorous imprisonment u/s 323 read with Section 149, I.P.C. All the sentences shall run concurrently.

(3) The four accused-Appellants, namely, Babu Khan, Mukhtiyar, Javed Khan and Mohd. Hafeez Khan stand convicted u/s 147, I.P.C. with six months'' rigorous imprisonment and u/s 323 read with Section 149, I.P.C. with sentence of six months'' rigorous imprisonment. Both the sentences of each of them shall run concurrently.

The impugned judgment of conviction and sentence passed by the learned Sessions Judge stands modified as per our this order.

The accused-Appellants, namely, (1) Abdul Waheed (2) Babu Khan, (3) Mukhtiyar, (4) Javed Khan, and (5) Mohd. Hafeez are on bail. The Chief Judicial Magistrate, Farrukhabad, shall cause them to be arrested and lodge them in jail to serve out the sentences passed against them. Compliance be reported within two months.

Let the judgment be certified to the court below.