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Judgment
S.K. Jain, J.—This criminal appeal is directed against the judgment of conviction and order of sentence both dated 24.1.1980 vide which the Appellants were convicted and sentenced as under by Shri S.S. Gupta. IV Addl. District and Sessions Judge, Varanasi:
Name of the Appellants Conviction Sentence 1. Habibullah 1. u/s Life sentence 2. Niyamat 302 read with Section each 3. Yunus 149, I.P.C. (each) 4. Rashid 2. u/s Six months'' 5. Samad 147, I.P.C. (each) R.I. each 6. Chhedi 7. Shamsuddin 3. u/s Six months'' 8. Sadruddin 323/149, I.P.C. (each) R.I. each 9. Ekram (i) u/s Life Imprisonment 302, I.P.C. (ii)Under Section One year''s R.I. 323/149, I.P.C. 2. Following pedigree tables will be beneficial in understanding the facts of this case:
Pedegree Table No. 1 Adam | ________________________________________________________ | | | | Chhedi Nizamuddin Shamsuddin Sadruddin (informant P.W 1) (injured not (accused- (accused-Appellant) examined) Appellant) | | | Kayum (deceased) Kalam Ekram (accussed-Appellant) Pedegree Table No. 2 Subhan | Bhola _____________________________________________ | | Yar Mohammand Noor Mohammad (2nd husband) (1st husband) Salma | | Habibullah Barkatullah (accused-Appellant) | married to Mst. Kusum Rashid (injured not examined) (accused-Appellant) | Niamat (accused-Appellant) Pedegree Table No. 3
Janulla | Abdul Samad | Yunus (accused-Appellant) Pedegree Table No. 4 Kallu | ________________________________________________________ | | | Sattar Gaffar Rajjak _____________________________________________ | | | Masiulla Wasiulla Hafizulla | | Ilias(Injured P.W. 3) _________________ | | Yunus Ramjan
Pedegree Table No. 5
Chhedi Hasan alias Chhedi (accused Appellant) is not related to anybody but allegedly belongs to the group of Habibullah.
Short fact of this case as revealed in the testimony of three eyewitnesses namely; Chhedi P.W. 1. Jadu Nath P.W. 2 and Ilias P.W. 3. are that Yusuf and Habibullah accused resided in village Belaudi P.S. Mirza Murad, District Varanasi. There was a long standing enmity between them and Habibullah on account of land and construction of house. Due to this reason there were two parties, one led by Yusuf and the other headed by Habibullah.
On 1.5.1977 at about 7 a.m. members of the family of Habibullah namely, his wife Mst. Kusum and his son Niyamat were stacking bricks in the dilapidated house situated in the west of his house. Ilias and family members of Yusuf asked them not do so. Thereupon, Niyamat, Samad, Yunus, Rashid. Chhedi, Shamsuddin, Sadruddin and Ekram arrived and started abusing them. Persons present there asked them not to do so but to no effect. All of them climbed on the roofs of their respective houses. Habibullah, Niyamat, Samad, Yunus, Rashid, Chhedi Hasan climbed at the roof of Habibullah. Samshuddin and Ekram reached on the roof of their houses. All of them started pelting bricks and stone bats thereby causing injuries to Nijamuddin. Ilias and Mst. Kusum, wife of Habibulla who were downstairs. Shamsuddin, Sadruddin and Ekram alighted from their roof while raising Lalkara. Ekram was armed with Gandasa whereas Shamsuddin and Sadruddin were armed with one lathi each. They went towards Ilias. Chhedi P.W. 1 and his son Kayum asked them not to do so. Shamsuddin exhorted his co-accused to kill them. Thereupon. Ekram dealt a Gandasa blow which landed on the hands of Kayum whereupon he fell. Ilias and Kalam had also pelted stones on the accused persons. Thereafter Niyamat accused set the dilapidated house on fire. After the accused had left the place of occurrence. Kayum was carried to Gangapur on a cot from where he was taken to police station Mirza Murad in a taxi where Yadunath Singh, Pradhan, lodged F.I.R. Ex. Ka 1. Kayum was removed to S.S.P. Gupta Hospital, Varanasi for medical examination.
The accused had also suffered injuries and therefore, they were medico-legally examined by Dr. Narsingh Upadhya, P.W. 5 who found the following injuries on their persons vide injury reports Ex. Ka-1 to Ka-3:
Injuries of Sadruddin:
Lacerated wound 3 cm. x 4 cm. x bone deep on the left side of the forehead 2� above the left eye brow and 1/2 left to the middle line. Surrounding area contused and swollen. Fresh blood clots present on and around the wound. Bleeds on touch.
2 Lacerated wound 3.5 cm. x 5 cm. x bone deep on the left side of the forehead 1 cm. above the injury No. 1. Surrounding area contused and swollen. Fresh blood clots present on and around the wound. Wound bleeds on touch.
Lacerated wound 1� x 3 mm. x bone deep on the right eye brow at its outer side. Surrounding area contused and swollen. Fresh blood clots present on and around wound.
4 Abrasion 2� x 2� on the left side of the chest 2� below and out to left nipple. Colour reddish.
Abrasion 2� x 1-1/2� on the right side back at the inferior angle of right scapula. Colour reddish.
Penetrating wound 4 mm. x 4 mm. x 1-1/2� on the outer side of right thigh 6� above the right knee. Bleeding present on touch. Surrounding area swollen in 2� x 1� diameter.
Abrasion 1 cm. x 3 mm. x on the outer side of right knee.
Lacerated wound 4 m.m. x skin deep on the front of left ankle. Fresh blood clots present on and around the wound. Surrounding area swollen.
Injuries of Shamsuddin:
Lacerated wound 1/2� x 3 mm. x bone deep on the left side of the forehead 3 cm. left to the mid line and 1� above the left eye brow. Fresh blood clots present on and around the wound. Bleeding present on touch. Surrounding area swoollen and contused.
2 Contusion 2� x 1� on the back of right forearm 2� above the wrist joint. Colour reddish.
3 Contusion 1� x 1/2� on the back of left hand near the base of thumb. Colour reddish.
4 Contusion 1-1/2� x 1� on the front of left thigh 8� above the knee. Colour reddish.
Contusion 1-1/2� x 1-1/2� on the back left side at the level of inferior angle of scapula. Colour reddish.
All injuries simple in nature. Seem to be inflicted by blunt object. Duration fresh.
Injuries of Smt. Kusum:
Lacerated wound 4 mm. x 3 mm. x muscle deep on the upper lip in the mid line. Whole upper lip is swollen. Fresh blood clots present on and around the wound.
Contusion 2� x 2� on the right cheek at the sygomatis region. Colour reddish blue.
Contusion 1� x 1� on the back of left shoulder at the upper border of left scapula. Colour reddish.
This Doctor had also medico-legally examined P.W. 6 Ilias, vide injury report Ex. ka.-l0 and Abdul Kalam Ex. ka.-4.
P.W. 9 Dr. V.P. Singh had medico-legally examined Kayum on 1.5.1977 at 10.10 a.m. in S.S.P. Gupta Hospital, Varanasi and found following injuries on his person:
�incised round 2 cm. x 3 cm. x brain deep (brain matter coming out) on the front of the forehead�.
He found the patient unconscious and his general condition was poor. The nature of injury was kept under observation. The doctor opined that injury had been caused by sharp edged instrument and duration was fresh.
in view of precarious condition of Kayum. he was removed to Sir Sunder Lal Hospital, B.H.U. Varanasi. He died there on the night intervening 1/2.5.1977.
Post-mortem examination on the dead body of Kayum was performed by P.W. 8 Dr. M.L. Yadav on 2.5.77 at 2.30 p.m. vide Ex. Ka. 19. He found the following injuries on the dead body:
A stitched wound 18-1/2 cm. long running almost vertically over the top of the head and forehead in the middle upto the middle of eye brows. Brain matter was seen coming out of the wound.
Upon internal examination, the doctor found as under:
Scalp: Clotted blood under the scalp around injury No. 1 present. A cut in the skull bone Involving the middle of and the left parital bone just to the left of middle line, under the injury No. 1 present.
Brain: Clotted blood over the surface present.
Stomach: It was empty but contains some liquid blood.
Large Intestine: It was empty but with gas.
Small Intestine: It contains faecal matter and was distended with gas.
The autopsy surgeon opined that the death was due to coma as a result of head injury which was sufficient to cause the death In the ordinary course of nature.
The report was scribed by Yadunath. It was signed by Chhedi Lal. It was delivered in the police station Mirza Murad by Yadunath Singh. On the basis of said report, P.W. 4. Head Constable Rain Abhilash Pandey had recorded F.I.R. Ex. Ka. 6 u/s 307, I.P.C. After the registration of the case, Station House Officer Ram Dhin Singh, P.W. 5 took over the investigation of the case. He sent the injured to the hospital and hurriedly went to the spot, recorded the statement u/s 161 Code of Criminal Procedure of Chhedi, Yadunath Singh, Abdul Rahman, Abdul Zalil, Yusuf, Noor Mohammad P.Ws.
He inspected the spot and prepared rough site plan Ex. Ka. 12. He raided the house of Ekram and on its search, recoverded blood stained Gandasa vide recovery memo Ex. Ka. 5. He lifted the blood stained earth from the spot, sealed it into parcel and took it in police possession vide recovery memo Ex. Ka 4. From the spot, he also lifted burnt ash vide recovery memo Ex. Ka. 3. He also lifted from the spot brick bat Ex. Ka. 2.
On the receipt of the information of the death of Kayum. he converted the offence from Section 307, I.P.C. to Section 302, l.P.C.
After the close of prosecution case the statement of accused u/s 313, Code of Criminal Procedure were recorded. They denied all the incriminating evidence which was brought on the record and was put to them. The defence version in nutshell as put forward in reply to question No. 24 put to the accused Sadruddin in his examination u/s 313. Code of Criminal Procedure is that on the date of occurrence Mst. Kusum was plastering the wall of her house with mud. Thereupon Yunus, Nizaumuddin, Habibullah, Kayum and Noor Mohammad armed with lathi, Gandasa and Ballam came there, surrounded the house and caused injuries. On hearing the noise, Sadruddin and his brother Shamsuddin reached there in order to stop them but they caused injuries to them also. Hafizulla dealt a Gandasa blow on Shamsuddin but it landed on the wall and got entangled there. Shamsuddin took that Gandasa and in exercise of the right to self defence aimed a blow with it on Hafizulla but as Kayum came in between all of a sudden it landed on his head. The accused got medico-legally examined and lodged a report.
When called upon to enter upon their defence, the accused did not choose to lead oral evidence in defence but exhibited on record injury reports of Sadruddin, Shamsuddin and Smt. Kusum, Ex. Kha.-1 to Kha.-3, F.I.R. Kha.-6. copy of G.D., Ex. Kha-7, report of the local Commissioner, Ex. Kha. 8 filed in Civil Suit No. 343 of 1976 Shamsuddin and Ors. v. Hafizulla and Ors. Ex. Kha.-8, and certified copy of plaint in the above suit Ex. Kha.-9.
In order to prove its case, the prosecution examined three eye witnesses namely, Chhedi, P.W. 1. Yadunath P.W. 2, Ilias P.W. 3. P.W. 5 Dr. Narsingh Upadhyaya had medico-legally examined Ilias P.W. 3 and Abdul Kalam besides all the injured accused persons. P.W. 9 Dr. V.P. Singh has examined Kayum deceased prior to his death besides Nizamuddin. P.W. 8 Dr. M.L. Yadav is autopsy surgeon. Evidence of these witnesses have already been discussed in the earlier part of this judgment. P.W. 4 R.A. Pandey has proved the F.I.R as also the cross F.I.R. P.W. 7 constable Keshav Prasad Pandey had accompanied the dead body of Kayum to the mortuary. Ram Dhin Singh P.W. 6 is the investigating officer of this case. His testimony has been dealt with In details In the earlier part of this judgment.
The learned trial court believed the ocular account given by three eye witnesses and corroborated by medical evidence and convicted and sentenced the accused as mentioned hereinbefore.
It is that judgment of conviction and order of sentence, both dated 24.1.1980. passed by Shri S.S. Gupta. IV Addl. District and Sessions Judge, Varanasi which has been challenged in this criminal appeal and which requires our scrutiny of its sustainability.
We have heard the learned Counsel for the parties and with their help have gone through the record of the case.
As is evident from the trend of cross-examination of the eye-witnesses and statement of accused Shamsuddin and Sadruddin recorded u/s 313, Code of Criminal Procedure that the date, time and place of occurrence and participation of the accused therein is admitted but the manner of occurrence is disputed.
The three eye-witnesses Chhedi P.W. 1, Yadunath P.W. 2 and Ilias P.W.3 have fully supported the prosecution case by consistently stating that on 1.5.77 at 7.30 a.m. the members of the family of Habibullah were stacking bricks in the dilapidated house situated in the west of their house. Ilias stopped them from doing so. Thereupon Habibullah, Niyamat, Samad, Yunus, Chhedi, Shamsuddin, Sadruddin and Ekram came there and started absuing. Habibullah, Niyamat, Yunus, Samad, Rashid and Chhedi climbed on the roof of the house of Habibulla whereas Shamsuddin and Ekram climbed on the roof of their house. They pelted brick bats and stones as a result whereof Nijamuddin, has and Smt. Kusum received injuries. Ekram, armed with Gandasa, Shamsuddin and Sadruddin armed with one lathi each came down and stepped forward to assault has. Thereupon Kayum tried to dissuade. them from doing so. But Ekram dealt a Gandasa blow which landed on his head, as a result whereof he fell down. All three of them were subjected to a lengthy and searching cross-examination but no dent in their testimony could be created. They remained consistant on all material points and supported the prosecution case.
After Kayum had received Gandasa injury at the hands of Ekram, he was taken to S.S.P. Gupta Hospital, Varanasi where Dr. V.P. Singh. P.W. 9 had examined him. He had found an incised wound 20 cm. x 3 cm. brain deep on the front of forehead. He had also found that the brain matter was coming out. This doctor had opined that this injury could be caused by a sharp cutting instrument.
Since the condition of Kayum had deteriorated he was removed to Sir Sunder Lal Hospital, B.H.U. Varanasi for better management. He having died post mortem on his dead body was conducted by Dr. M.L. Yadav. P.W. 8 vide post mortem report Ex. Kha-9. He had found a stitched wound 18-1/2 cm. long running almost vertically over the top of the head and forehead In the middle upto the middle of eye brows. Brain matter was seen coming out of the wound.
On internal examination, he had found clotted blood under the scalp around Injury No. 1. The autopsy surgeon had opined that the death was caused due to coma as a result of head injury, which was sufficient to cause death in the ordinary course of nature.
Dr. V.P. Singh P.W. 9 on medico-legal examination had found one lacerated wound and one abraded contusion on the person of Nizamuddin.
Dr. Narsingh P.W. 5 vide injury reports Ex. Ka.-l0 and Ka.-1 1 had found one lacerated wound on the head of ilias and 5 abrasions on the person of Abdul Kalam. The testimonies of these two doctors have already been discussed in the earlier part of this Judgment. Dr. Narsingh had opined that injuries could have been caused by a blunt weapon. 28. The other witnesses whose testimonies have been discussed here in before have also lend corroboration to the prosecution version.
It is admitted on both ends that there was long drawn litigation between the parties. It is also established through the copy of plaint Ex. Kha.-9 and copy of the report of local Commissioner Ex. Kha.-8. The occurrence had also originated from the dilapidated house situated in the west of the house of accused party. Therefore, it could not be said that it was a case of sudden fight. The members of both the parties had received injuries on their persons but from the sequence of events and the manner in which the accused had behaved it is not established that they had formed an unlawful assembly, the object of which was to commit the murder of Kayum and to cause simple injuries on the persons of Nizaumuddin, Abdul Kalam and Ilias. Each one of them was liable for his individual act. It was Habibullah, Niyamat, Yunus, Rashid, Samad and Chhedi who had pelted stones thereby causing injuries to Ilias. Kalam and Nizamuddin. Shamsuddin and Sadruddin armed with lathi and Ekram with a Gandasa had come out of the house, Shamsuddin and Sadruddin had not caused injuries with their lathis nor they shared common intention with Ekram to cause the death of Kayum. It has come in evidence of eye-witnesses that Ekram, Shamsuddin and Sadruddin had stepped forward towards Ilias and at that point of time Chhedi P.W. 1 and his son Kayum, deceased, had intervened. At that point of time. Ekram had hurled a Gandasa blow which had landed on the head of Kayum. It is thus evident that Ekram had dealt a Gandasa blow without any intention to cause the death or to cause such bodily injury as was likely to cause the death of Kayum but he certainly had the knowledge that such act is likely to cause the death of Kayum and therefore, he was certainly liable for an offence u/s 304(2), I.P.C. and, therefore, his conviction is converted from Section 302, I.P.C. to u/s 304(2), I.P.C.
The net result Is:
(i) Accused Shamsuddin and Sadruddin are acquitted. They are already on bail. Their bail bonds and sureties are discharged.
(ii) The conviction of each of the accused Habibullah, Niyamat, Rashid, Samad and Chhedi Is converted to u/s 323, I.P.C.
(iii) The conviction of accused Ekram is converted to u/s 304(2), I.P.C.
Now on to the question of quantum of sentence. After hearing the learned Counsel for the Appellants on the question of quantum of sentence and taking into consideration all the facts and attending circumstances of the case we feel that end of justice would be squarely met if the life sentence of accused Ekram is reduced to five years'' R.I. We order accordingly. He is on bail. His bail bonds are cancelled. He be got arrested immediately and lodged in prison to undergo the term of sentence.
Each of the six accused namely Habibullah. Niyamat, Yunus. Rashid, Samad and Chhedi are sentenced to undergo imprisonment for the period already undergone u/s 323, I.P.C. We ordered accordingly.