Gaffar vs State of U.P.

M.C. Jain, J.—This appeal from jail has been filed by the sole accused-Appellant Gaffar against judgment dated 30.4.2002, passed by Vth Additional Sessions Judge, Bijnor in Sessions Trial Nos. 326 of 1999, 327 of 1999 and 328 of 1999 (tried together) whereby he has been convicted u/s 302, I.P.C. with sentence of life imprisonment; u/s 25 of Indian Arms Act with the sentence of two years'' rigorous imprisonment and payment of fine of Rs. 1,000. In default of payment of fine, he has been sentenced to undergo further rigorous imprisonment for three months. He has also been convicted u/s 4/25 of Indian Arms Act with sentence of one year''s rigorous imprisonment and fine of Rs. 500. In default of payment of fine, one month''s further rigorous imprisonment has been awarded. All the sentences have been ordered to run concurrently.

Since the accused-Appellant had no pairokar or the counsel, this Court appointed Sri D. R. Chaudhary as amicus curiae to argue out the appeal on his behalf. We have heard him as also Miss Usha Kiran, learned A.G.A. for the State.

Thumbnail sketch of the case should first be taken note of. The incident occurred on 19.4.1999 at about 12.30 p.m. in Mohalla Khatriyan, P.S. Kotwali, district Bijnor and the F.I.R. was lodged the same day at 2.45 p.m. by Smt. Rafika P.W. 1-eye-witness (wife of the deceased Abdul Salam). Abdul Salam used to earn his livelihood by pulling a rickshaw. The accused-Appellant is the son of Abdul Sattar-younger brother of Abdul Salam. As Abdul Sattar had died, the accused-Appellant Gaffar was brought up by the deceased Abdul Salam. Gaffar developed some ailment in one of his eyes. Abdul Salam got him treated to the best on his discretion, but in vain. Gaffar used to accuse the deceased that he was responsible for spoiling his eye by getting him treated by trouts. He also used to accuse that he had got his father Abdul Sattar murdered.

On the eventful day and time, the deceased was taking tea at the shop of Shamim Halwai in Mohalla Khatriyan. His sons Islamuddin and Nizamuddin were also standing nearby. Gaffar accused-Appellant appeared there and opened a shot in his back by countrymade pistol. Abdul Salam fell down and then the accused assaulted him with chapar (sharp cutting weapon) on left side of his face. He was apprehended at the spot by Yusuf P.W. 2, Islamuddin and Nizamuddin with countrymade pistol and chapar. Abdul Salam died at the spot instantaneously. His wife Rafika P.W. 1 had reached the spot hearing the noise emanating from the spot, her house being only at a distance of 100 yards.

On the lodging of the F.I.R., a chik was prepared by Sukhbir Singh P.W. 4. The accused alongwith pistol and chapar had also been taken to the police station and deposited there. The weapons of offence (countrymade pistol and chapar) were sealed at the police station and then kept in malkhana.

The investigation of the case was taken up by S.O. A. K. Gautam P.W. 7 who was present when the F.I.R. was lodged and the accused taken there along with the weapons of offence. The statement of the informant was recorded at the police station itself. Then he reached the spot alongwith other police personnel. There, the inquest report of the dead body was got prepared by him by S.I. N. K. Pundir P.W. 5 who had accompanied him. Other necessary papers were also prepared. The dead body after being sealed was sent for postmortem through Constable Shokinpal Singh P.W. 6 and Constable Dharamveer. ''The post mortem over the dead body of the deceased Abdul Salam was conducted on 19.4.1999 at 8.30 p.m. by Dr. A. S. Rathore P.W. 3. The deceased was aged about 55 years. The following ante mortem injuries were found on his person :

(1) Incised wound 8 cm. x 1 cm. x bone deep on left side ear and adjoining face.

(2) Lacerated wound 2 cm. x 1 cm. x skin deep over right side face just below the right eye.

(3) Firearm wound of entry 4 cm. x 3 cm. x chest cavity deep on right side back of chest medial and inferior angle of scapula and 3 cm. from mid-line in mid thoracic region. Margins inverted, scorched and area blackish and tattooed, bleeding, broken ribs.

(4) Contusion reddish with feeling of pellets underneath in area 6 cm. x 4 cm. on right side front of chest, 2 cm. medial and inferior to right nipple at 4 O''clock position.

The left parietal bone was found fractured on internal examination. Certain ribs were also found fractured. Right lung and pleura were lacerated. 4 pieces of wads and 150 pellets of metal were recovered under injury No. 3 from the dead body of the deceased. The death had occurred due to shock and haemorrhage as a result of ante-mortem injury.

The defence was of denial and of false implication.

According to his statement u/s 313, Code of Criminal Procedure he was blind. His one eye was lost about 15-16 years back and there was cataract in the other eye for the last about 6 or 7 years back. He was eking out his existence by begging. He had only his old mother and there was no other member in his family. He had been falsely implicated so that his house could be grabbed.

The prosecution in all examined nine witnesses, out of whom Smt. Rafika P.W. 1, Yusuf P.W. 2 and Shamim Ahmad P.W. 8 were eye-witnesses. The remaining evidence was more or less of formal nature including that relating to the investigation of the case and medical aspect.

Finding the evidence to be clinching, the trial court returned the verdict of guilty.

The learned amicus curiae has criticised the testimony of the eye-witnesses, arguing that Smt. Rafika P.W. 1 had reached the spot after the incident and as such her testimony was liable to be excluded. According to him, the testimony of the other so-called two eye-witnesses was wholly insufficient to find the accused to be guilty. We have carefully gone through the evidence and find ourselves unable to accept the argument of the learned amicus curiae.

So far as Smt, Rafika P.W. 1 is concerned, she witnessed part of the incident. It has come in her testimony that her house was only at a distance of 100-150 yards from the shop of Shamim Halwai where the incident took place. She had reached there on shouts that her husband had been shot at. True, the shooting part had taken place before she reached there, but it is gleaned from her testimony that the accused had assaulted her husband with chapar within her sight and thereafter he had been apprehended at the spot by Shamim and Ors. Because of close proximity from her house of the place of incident, she could witness the part of the happening. She was a truthful witness and deposed only that part which she saw with her own eyes. The F.I.R. had been lodged by her after getting scribed by Nasim. The accused had been apprehended at the spot with the weapons of the offence (pistol and chapar) which too had been taken to the police station at the time of lodging of the F.I.R. alongwith him (accused).

The other two eye-witnesses, namely, Yusuf P.W. 2 and Shamim Ahmad P.W. 8 found to be independent witnesses who had no animus whatsoever against the accused to depose falsely against him. It is also noted that Yusuf had even accompanied the informant-Rafika P.W. 1 to the police station for the lodging of the F.I.R. His name finds place in the G.D. related to the registering of the case. Yusuf P.W. 2 emphatically stated that he was present at the shop of Shamim Ahmad where the deceased was taking tea when the accused (nephew of the deceased) first shot him from a pistol from behind and then assaulted him with chapar after he had fallen down. He, Nizamuddin and Islamuddin had caught hold of the accused alongwith pistol and chapar. His presence at the spot was quite probable because his house was situate only at a distance of 10-20 yards. He clarified that on that day he had not gone for selling vegetables because he was a little unwell. We also note from his testimony that the shot had been fired by the accused on the victim from a very close range. It is found corroborated from the post mortem report because scorching, blackening and tattooing had been found around the gunshot wound. Even four pieces of wads and 150 pellets had been recovered from chest wall of the deceased at the time of post mortem.

Similarly Shamim Ahmad P.W. 8 was also an independent witness. It was at his shop that the incident took place where the deceased was taking tea sitting on a stool. The accused came from behind, opened shot on him and then assaulted him with chapar after he had fallen down. He, too, stated that the accused had been apprehended at the spot itself with pistol and chapar. The presence of Yusuf P.W. 2 at the spot is found corroborated by his testimony also. Further, he as well as Yusuf P.W. 2 also stated that the wife of the deceased (Rafika P.W. 1) had reached the spot during the happening.

The medical evidence contained in the post mortem report proved by Dr. A. S. Rathore P.W. 3 is corroborative of the testimony of the eye-witnesses. The deceased sustained an incised wound capable of being caused by chapar. He had suffered an injury on the right side back of chest which was caused by firearm. The ante-mortem injury No. 2 was lacerated wound and the Doctor stated that it could be sustained by fall. The ante-mortem injury No. 4 was contusion on right side front of chest under which there were pellets.

The Investigating Officer-A. K. Gautam P.W. 7 had found blood at the spot as also blood stained pair of rubber chappals belonging to the deceased Abdul Salam and pair of chappals of the accused (one of which was also blood stained). The blood stained earth and chappals of the deceased were found to contain human blood as per the serologist''s report Ext. Ka-20.

The learned amicus curiae argued that on comparison by Ballistic Expert, it could not be ascertained that the cartridge shell found in the barrel of the pistol deposited at the police station alongwith the accused (with which he had allegedly fired) had been fired from the pistol in question. He made reference to Ballistic Expert''s report Ext. Ka-21 in this behalf and urged that the cartridge sent for comparison (E.C.-1) did not tally with the tested cartridge shell (T.C.-1). This submission is based on superfluous approach. It is to be pointed out that as a matter of fact no material or thing was available on E.C.I. on the basis of which comparison could be possible. The reason was that brass head of the said empty shell (E.C.I.) was missing. This fact is found mentioned in the report of Ballistic Expert also. The weapon of offence was a countrymade pistol. Nobody knows what sort of cartridge had been used by the accused in shooting the victim from the countrymade pistol in question. In the absence of brass head on the empty cartridge, there was no marking pin and comparison could not be possible. Under these circumstances, the Ballistic Expert''s report cannot be interpreted negatively against the prosecution.

On careful scrutiny and analysis, it is not possible to locate any merit in the submission of learned amicus curiae. It is a case of single accused who had been apprehended at the spot by the eye-witnesses alongwith the weapons of offence, i.e., country-made pistol and chapar. It was a broad day light incident. The witnesses had no enmity with the accused. The deceased himself was the own uncle of the accused and Rafika P.W. 1 is the wife of the deceased. It came through her evidence that the deceased had brought up the accused after the death of latter''s father. In fact, the accused proved to be an ingrate who cut short the life of his own uncle who had brought him up. He acted on his whims that he did not get him properly treated for his eye ailment and also accused him for the death of his own father, though his (accused''s) father had died of T.B. as stated by Rafika P.W. 1.

In view of the above discussion, we endorse the finding of conviction recorded by the lower court and sentence as passed against him.

The appeal fails and is dismissed. The accused-Appellant Gaffar is in jail. He shall suffer sentences as awarded by the lower court. The Chief Judicial Magistrate, Bijnor shall ensure it and report compliance within a month from the date of receipt of copy of this order.

Sri D. R. Chaudhary, who argued out the appeal for the accused-Appellant as amicus curiae shall get Rs. 1,000 as his fee.