Ahsan vs State of Uttar Pradesh

Pramod Kumar Srivastava, J.

This appeal has been filed against judgment dated 11.12.2007 passed by Additional Sessions Judge, Court No. 10, Muzaffarnagar in ST No. 746 of 2005, State v. Ahsan, Crime No. 316 of 2004 under section 452, 307/34, 504 and 316/34 IPC, police station Shamli, district Muzaffarnagar by which the accused Ahsan was convicted for aforesaid offences.

The brief facts of the case is that on 8.10.2004 at about 7.30 pm, Manshad, Kamil and Ahsan had trespassed in the house of Naseem with intention to murder the occupants of house. After hearing the noise and shouting the complainant Iliyas (PW-1) reached there in the house of complainant where he saw that three accused had started firing. Manshad fired from his country made pistol and his fire hit Iftekhar; the fire of country made pistol of Kamil hit in the belly of Rukhsana, who was pregnant; and shot fired by Ahsan appellant) hit in the head of Sahjad (PW-2). This incident was witnessed by Khursheed, Shamshad and Ikram. Then complainant Iliyas reported the matter in police station Shamli at about 8.45 pm. On the basis of his report case crime No. 313 of 2004 under section 452, 307/34, 504 and 316/34 IPC was registered.

During investigation accused Kamil had died. After investigation charge sheet was submitted by the police against Manshad and Ahsan, but later on Manshad was declared juvenile and his case was referred to the Juvenile Justice Board. On the basis of charge sheet S.T. No. 746 of 2005 was registered against accused Ahsan (appellant) only in which he was charged for offences under section 452, 307/34, 504, 316/34 IPC. He denied the charges and claimed to be tried.

In this Sessions Trial the prosecution side has examined PW-1 Mohd. Iliyas the complainant, PW-2 Sahjad (injured), PW-3 Dr. Anmol Tayal, and PW-4 Dr. Arjun Singh Vohra, PW-5 Istekhar (injured), PW-6 Rukhsana (injured), PW-7 S.I. Vijendra Singh (I.O.). These witnesses have proved documentary evidences of prosecution side Exhibit Ka-1 to Exhibit Ka-20.

After closure of prosecution evidence the accused had denied prosecution case in his statement under section 313 Cr.P.C., and pleaded that evidences against him are false, and wrong case had been registered against him. The defence side had examined two witnesses namely Khursheed (DW-1) and Shakeel Ahmad (DW-2) in defence.

After affording opportunity of hearing to prosecution and defence side the learned Addl. Sessions Judge, Court No. -10, Muzaffarnagar Sri Allaha Rakhe Khan has passed judgment dated 11.12.2007 by which accused Ahsan was convicted for all the charges. After hearing on point of quantum on sentence, learned Sessions Judge has passed order of sentence by which accused Ahsan was sentenced for imprisonment of life and Rs. 10,000/- as fine for offence under section 307/34, 10 years rigorous imprisonment and Rs. 5,000/- as fine for the charge under section 316/34 IPC, imprisonment for 2 years and Rs. 1000/- as fine for the charge of section 504 IPC, and the imprisonment for 7-years and Rs. 5000/- as fine for charge of section 452 IPC. The trial Court had also directed that all the sentences would run concurrently. Aggrieved by this judgment of conviction, the accused Ahsan had preferred the present appeal.

We have heard Ms. Shweta Pandey and Sri I.M. Khan, learned counsels appearing on behalf the appellant, Sri Mahendra Singh Yadav learned AGA for the respondent State, and perused the record of the original case.

Learned counsel for the appellant contended that there was no motive to attempt to commit murder, independent prosecution witnesses did not supported the prosecution case, and prosecution has failed to prove the case beyond reasonable doubt. These facts were not appreciated by the trial Court, therefore the appeal should be allowed, the impugned judgment of conviction should be set aside and appellant should be acquitted. Alternative argument of appellant side was on point of quantum of sentence for offence under section 307 IPC.

Learned AGA had contended that prosecution witnesses of fact had proved the charges beyond reasonable doubt. The testimony of injured as well as independent witnesses are trustworthy and believable. There is no illegality or impropriety in the judgment of trial Court. Charges had been proved beyond doubt. Even sentence awarded in this case is appropriate. Therefore the appeal should be dismissed.

Dr. Anmol Tayal (PW-3) had emergency duty in the hospital on 8.10.2004 where Shahjad was admitted, and on the same day at about 11.10 pm PW-3 had examined and treated Shahjad. He stated on oath that at the time of examination there was a star shaped injury on the back side of head of Shahjad which was bleeding. On examination it was found that there was a hole of 1.5 cm in the bone of head which was fractured, and around that hole there was blackening with gun powder. Skin of the injured was torn and burnt, and the broken pieces of bones were removed from the head and the operation was conducted by him. Dr. Anmol Tayal (PW-3) had recognized injured Ahsan in the court and also proved his injury report Ex.-Ka1, and stated that his injury could have been caused by fire on 8.10.2004 at about 7.00 pm, and this injury could have been fatal.

Dr. Arjun Singh Vohra (PW-4) was deputed in private nursing home on the date of incident. He stated on oath that on 8.10.2004 at about 8.00 pm in the evening Iftekhar, aged about 36-years had been admitted in his hospital, who was examined by him and stated that there following two injuries on his body:

"(i). Lacerated wound 1.5 cm x 1.5 cm flesh right side on face, 5 cm below mouth.

(ii). Lacerated would 4 cm x 5 cm on left side of face, 4 cm below face from which bone was showing."

Both the lacerated wounds were fresh and could have been inflicted within half hours to two hours of the time of inspection, and could have been caused by fire arm. Out of two injuries, first was entry wound of fire and second was exit wound of the fire. Such fire could have been inflicted from distance of 3 feet. These injuries were serious and could have been fatal. This injury report was proved as Ex.-Ka-6 by Dr. Arjun Singh Vohra (PW-4), who also proved X-ray plate as material Ex.-1 and Ex.-2 relating to said injury and also Ex.-Ka-7, the X-Ray report.

Dr. Arjun Singh Vohra (PW-4) has also examined Smt. Rukhsana on the same date, i.e. 8.10.2004 at about 9.00 pm. He stated that following injuries were found over the body of Rukhsana:

"(i) Lacerated would on right side on stomach, 2.5 cm x 1.5 c.m. fresh having inverted margins bleeding. Lacerated wound present ant-abdominal wall. Just right side of mid-line, about 7 cm below costal margin, right side. Depth could not be detected. Abraison present at its upper border."

Dr. Arjun Singh Vohra (PW-4) also stated on oath that on X-ray it was found that injured Rukhsana was pregnant and dead body of child was present in her womb. X-Ray also reveals that 3.5 cm bullet. He has also proved X-Ray report as Ex.-Ka1 and X-Ray Plates as Ex.-3 and states that unborn child was removed from the womb of Rukhsana by operation in which bullet was found which was removed. This injury would have been caused to Rukhsana on 8.10.2004 at about 7.30 pm.

The prosecution case has been that the three accused namely Mansad, Kamil and Ahsan had fired from country made pistol from close range to Iftekhar, Rukhsana and Shahjad respectively. Each accused had fired one bullet on vital part of the three injured. In this incident fire of Mansad hit the face of Iftekhar, fire of Kamil hit the abdominal part of pregnant Rukhsana injuring her and killing her unborn child and fire of Ahsan hit the head of injured Shahjad from close range. Dr. Anmol Tayal (PW-3) and Dr. Arjun Singh Vohra (PW-4) had proved that these injuries could have been fatal. Considering of these injuries make it clear that each of the injuries caused from close range by fire arm could have been fatal with intention of killing the victims.

The prosecution side had examined four witnesses of facts namely Mohd. Iliyas (PW-1) Complainant, Shajad (PW-2)) injured, Iftekhar (PW-5) injured and Rukhsana (PW-6) injured. Since injuries were caused from close range and from the front, therefore there was every possibility that injured persons could have properly identified and recognized the persons firing over them, especially when they were previously known to them. Shahjad (PW-2) injured had supported the prosecution case in satisfactory manner in his statement and stated that Ahsan had fired at his head from close range due to which he was injured seriously. This injured Shahjad (PW-2) has also proved that other two accused came together and fired and also injured Iftekhar and Rukhsana. Likewise other injured persons Iftekhar (PW-5) and Rukhsana (PW-6) have also stated that when they were sitting in their house then three accused Mansad, Kamil and Ahsan trespassed there, started abusing and fired over them. They stated that Ahsan fired at Sahjad, Kamil fired at Rukhsana and Mansad fired at Iftekhar, due to which they were seriously injured and unborn child in the womb of Rukhsana was killed. Mohd. Iliyas (PW-1), the complainant, in presence of whom this gruesome incident had happened, had supported the prosecution case and stated that when three accused namely Kamil, Mansad and Ahsan entered the house of Naseem and started abusing, then he entered the house and saw that three accused were there with country made pistols from which Mansad had fired and injured Iftekhar, and Kamil had fired and injured Rukhsana in her abdomen and Ahsan had fired on the head of Shahjad. The proper cross-examination of all witnesses was carried by defense side, but nothing came in cross-examination or evidence that may doubt the believability or truthfulness of the deposition of these four witnesses of facts, namely Mohd. Iliyas (PW-1), Shahjad (PW-2), Iftekhar (PW-5) and Rukhsana (PW-6). These four witnesses are of fact and are believable which proved the prosecution case and the charge leveled against accused Ahsan.

The learned Sessions Judge had considered the prosecution as well as defence evidence and considered them meticulously. Thereafter it arrived at the conclusion that the prosecution case and charges framed against Ahsan are proved beyond doubt. The finding of facts and conclusions arrived at by trial Court is based on available evidence and from proper meticulous application of judicial mind. The finding and conclusion of trial court are correct and justified; therefore it is confirmed. It is noteworthy that three injured persons of the case, namely Shahjad (PW-2), Iftekhar (PW-5) and Rukhsana (PW-6) were seriously injured by close range fires of fire arm, from the front side. These fires were inflicted on them by accused previously known to them and there was no doubt about identifiability of accused persons. Apart from this the Mohd. Iliyas (PW-1 complainant) had also seen the incident and proved the prosecution case beyond doubt. The statements of four witnesses are supportive to each other without any contradiction or shadow of doubt. Each injured person has stated that which particular accused had injured which particular inured person by firing, from front side. These almost fatal injuries could easily have resulted in death. There is no reason as to why injured persons would implicate any false accused and not name the person who had inflicted such serious and almost fatal injuries on him. Further the evidence to formal witnesses namely Dr. Anmol Tayal (PW-3), Dr. Arjun Singh Vophra (PW-4) and Vijendra Singh (PW-7) S.I/IO also had supported the prosecution case and deposition of above named witnesses of facts. The documentary and oral evidence of prosecution side had fully proved the charges framed against accused Ahsan beyond any shadow of doubt. Therefore, we come to the conclusion that finding and conclusion reached by the trial Court for the conviction of Ahsan for offences under section 452, 307/34, 316/34 and 504 IPC are correct and which are hereby affirmed. Therefore the appeal against order of conviction of appellant Ahsan is liable to be dismissed.

The alternative argument of learned counsels for the appellant was on point of quantum of sentence. They have pleaded that none of the injured victim of this case had died. Therefore, sentence of imprisonment of life for offence of section 307 is excessive. They contended that in case of murder the general rule is of punishment of imprisonment of life. But in the present case none of the injured had died, so punishment for offence in question relating to section 307 IPC should be much lower in nature as compared to punishment of offence of murder. Therefore the punishment for imprisonment of life for the charge of section 307 IPC should be reduced to the period of already undergone period as the appellant is in jail in the present case for more than 10 years.

These contentions were opposed by learned AGA. He contended that in present case Ahsan is guilty of attempting to murder Shahjad by his own act, and he is also guilty of offences under section 307/34 because he, in connivance with other two accused, had planned the cold blooded murder of three persons namely Shahjad, Iftekhar and Rukhsana. Learned AGA has also submitted that appellant Ahsan and other co-accused have successfully committed their intentional act which was sufficient in ordinary course for murdering above named three injured persons; but by grace of God and sheer incidence the three injured survived. In such a situation the order of punishment for committing attempt of murder is justified. Therefore the appeal deserves to be dismissed also on the point of quantum of sentence.

This argument of learned counsel for the appellant is correct that generally punishment of imprisonment for life is given only in cases of culpable homicide amounting to murder. It is also correct that generally in case of attempt to murder lesser punishment than that of imprisonment for life is awarded, the reason for which may be that attempt to murder is undoubtedly lesser act than successfully commissioned offence of murder. But the legislature has made provision for life imprisonment as maximum punishment for the offence of attempt to murder under section 307 IPC. This indicates that there must be some very extra-ordinary and rare reason for awarding punishment of imprisonment for life under section 307 IPC. In the light of this provision, we have considered the facts and circumstances of the present case.

In the present case three persons including appellant had deliberately planned the murder of three injured of the case namely Rukhsana, Shahjad and Iftekhar. For achieving that object there was of meeting of mind between three accused persons and they illegally trespassed in the house of the victims. At that time they were armed with deadly weapon like country made pistols. Thereafter they had intentionally and deliberately pointed their country made pistols at vital organs of the three persons and fired over them for killing them. Shahjad was fired point blank in the head, Iftekhar was fired on the face, and 7-months pregnant Rukhsana was fired at her belly. Seven months'' pregnancy is very apparent from naked eyes even when it is covered with proper clothes. The three accused persons including appellant Ahsan had common intention due to previous meeting of mind to murder these three injured victims, and then they have committed charged act which in ordinary course is likely to cause death in all probability. Therefore each accused is not only responsible for attempting the murder of the victim over which he had fired, but is also responsible under section 34 of IPC for the injuries caused by his companion and co-accused persons. Apparently Rukhsana was pregnant at advanced stage and fire over her abdomen resulted in the piercing of bullet in her belly, and thereafter in the body to unborn child, from where the bullet was later on removed by operation. It was previously known to three accused persons that such injury would cause death to Rukhsana and her unborn child, likewise Iftekhar was fired at face. Therefore the conviction and punishment for offences relating to charge under section 452, 504, 316/34 IPC of trial Court is confirmed.

The appellant had himself fired from a very close range in the head of Shahjad resulting fracture of Shahjad''s head and injury of bullet in it. The appellant and his co-accused persons could not do anything more than the alleged charged act for murdering the three victims of the case namely Shahjad (PW-2), Iftekhar. (PW-5) and Rukhsana (PW-6). It is sheer strange incidence as to why none of three victims had not died in such circumstances. In these circumstances it is explicitly clear that no stone had been left unturned by appellant and his companions for committing the murder, but it is only grace of God that all the three victims survived. In such well planned, cold blooded attempt to murder resulting in almost fatal injuries to three victims and the death of unborn child deserves maximum punishment prescribed by law for it which is imprisonment for life. Therefore, sentence of imprisonment for life for offence punishable under section 307 IPC awarded by trial court is fully justified and proper. In these circumstances appeal on the point of sentence is also liable to be dismissed.

For the reasons discussed above this appeal is hereby dismissed.