Habibullah and Others vs State of U.P.

Vinod Prasad, J.—Appellants, father Habibullah, his three sons Sahibujafar, Samshuddin and Sirajuddin and one Mohd. Ishahaq have preferred this appeal against judgment of their conviction dated 18.3.1982, for offence under Sections 304, 325, 323/ 149 and 147, I.P.C. and imposed sentences of 10 years R.I. for the first charge, 2 years R.I. for the second crime, one year R.I. for the third offence and six months R.I. for the last crime, recorded by VIIIth Additional and Sessions Judge. Azamgarh in S.T. No. 340 of 1980. State v. Habibullah and four others, relating to P.S. Mubarakpur, district Azamgarh. Stated laconically, prosecution allegations against the appellants are that they, on 5.6.1979 at 8 a.m., engaged themselves in verbal onslaught and vituperation with the informant Abdul Ghani and when forbade them to desist from using abusive words but they did not budge. Verbal duel succeeded by instigation thrown by appellant Habibullah. on which, appellant Sahibujafar caused injury by brick to the deceased Smt. Kulsum. a septuagenarian lady, as a result of which, she expired instantaneously. In the incident Abdul Ghani, Rahamatullah and Safiujjama, nephew of informant, had also sustained injuries. The occurrence was witnessed by Abdul Majeed, Abdul Wadood and Ishtahaq.

Written F.I.R. about the incident, Ext. Ka-1, was lodged the same day at 8.45 p.m. at a distance of one mile at police station Mubarakpur, district Azamgarh by the informant Abdul Gani. Head Moharir Wakil Ahmad, had registered the crime by preparing chik F.I.R. Ext. Ka-2 and G.D. entry Ext. Ka-3 and investigation into the crime was commenced by S.I. Lok Nath Ram (P.W.4).

Investigating Officer conducted usual investigation. recorded statements of the witnesses, prepared site plan map. Ext. Ka-9, etc. and concluding investigation had charge-sheeted the accused vide Ext. Ka-10.

Accused were summoned and finding their case triable by Sessions Court. it was committed to the Court of Sessions where it was registered as S.T. No. 340 of 1980. State v. Habibullah and others.

VIIIth Additional and Sessions Judge. Azamgarh charged the appellants for offences under Sections 147, 304/ 149, 325/ 149 and 323/ 149, I.P.C. on 6.4.1981. which charges were read out to the accused. who denied the same and claimed to be tried, and hence to bring their guilt home, their trial commenced.

In the trial prosecution examined, eight witnesses, out of whom Salahuddin (P.W.1), informant Haji Abdul Ghani (P.W.2) and Ishtiyaq Ahmad (P.W.3) were of fact. Rest of formal witnesses included Investigating Officer S.I. Lok Nath Ram (P.W.4), Dr. S. D. P. Gupta (P.W.5). Dr. R. R. Roy (P.W.6). Wakil Ahmad (P.W.7) and Dr. H. K. Gupta (P.W.8).

In their, statements u/s 313, C. P.C., accused persons denied incriminating circumstances put to them and pleaded their false implication and animus deposition by the witnesses.

Vide impugned judgment and order, learned trial Judge held appellants guilty for the aforesaid offences beyond doubt and therefore, convicted and sentenced them, as has already been mentioned hereinabove and hence, in the instant appeal, aforesaid conviction and sentence have been challenged.

To complete chain of events, it is noted that all the injured were medically examined on 5.6.1979 at 12.30 p.m. vide Exts. Ka-14, Ka-15 and Ka-16, which are reproduced hereinbelow :

Ext. 14 (Medico Legal Report) Examined Hazy Abdul Ghani. M.M. 35 years s/o Hazy Rahmatulla r/o Pura Rani, P.O. Mubarakpur, P.S. Mubarakpur, Tehsil Mohammadabad Gohrang, district Azamgarh on 5.6.1979 at 12.30 p.m. brought by constable Ram Ugarah Singh 735.

Injury report.--(1) Punctured wound-on front of right leg in lower half about 1 cm x 1/3 cm. x 3/4 cm. (1 cm. x 1/3 cm. x 3/4 cm.) 16 cm. away from lateral right leg margins are clean cut, fresh blood is coming, tenderness is duration forward downward.

(2) Contusion. On dorsal surface of right foot about 5 cm. x 5 cm. along on the bone leg toe, right side reddish bluish in colour and tenderness is noted.

(3) Swelling and contusion leg right middle toe. there is acute tenderness, swelling noted about 4 cm. x 1 cm. along the bone of same toe. right side.

Advise X-ray of right foot including middle toe for confirmation and diagnosis reddish in colour.

(4) Contusion on lateral surface of left thigh about 6 cm. x 2 cm., 10 cm. away from upper part of left patella, reddish bluish in colour, swelling and tenderness is noted.

Cause of injury.--Injury No. 1 is due to sharp weapon and injuries are due to hard blunt object.

Duration of injury.--Within six hours.

Type of injury.--Injuries 1 and 3 are under observation and some are simple.

Ext. 15 (Medico Legal Report) Examined Sri Hazy Rahmatulla. M.M. 75 years s/o Shah Mohammad r/o Pura Rani, P.O. Mubarakpur, P. S. Mubarakpur, Tehsil Mohammadabad Gohrang, district Azamgarh connect to state Dept. Mubarakpur on 5.6.1979 at 12.30 p.m. brought by constable Ram Ugarah Singh 735.

M.I. : A mole of Rt. side of forehead 2.5 cm. away from lateral angle of Rt. eye.

Injuries report.--(1) Abrasion on upper part of scalp about 1.5 cm. x 1/3 cm. 10.5 cm. away from upper loop of Rt. ear. Blood stained swelling and tenderness is present.

(2) Contusion. On one surface scalp about 2.5 cm. x 1.5 cm. 9 cm. away from middle of both eye brows. Reddish bluish in colour. Swelling and tenderness is present.

Cause of injury.--Due to hard blunt object.

Duration of injury.--Within six hours.

Type of injury.--Simple.

Ext. 16 (Medico Legal Report)

Examined Shafiuzzama. M.M. 18 years s/o Abdul Qaqum r/o Pura Rani, P.O. Mubarakpur. P.S. Mubarakpur, Tehsil Mohammadabad Gohrang. district Azamgarh connect to state Dept. Mubarakpur on 5.6.1979 at 12.30 p.m. brought by constable Ram Ugarah Singh 735.

M.I. : A mole on back of left scapula about 7 cm. away......... finger angle of left scapula.

Injury report.--(1) Abrasion on upper part of left shoulder joint about 1.5 cm. x 1 cm., 18 cm. away from supra sternal notch. Blood stained, swelling and tenderness is present.

(2) Contusion. On upper part of Rt. shoulder joint about 3 cm. x 2 cm. 17.5 cm. away from enpemier angle of Rt. scapula Reddish bluish in colour, swelling and tenderness is no leg present.

(3) Contusion on back of Rt. side of chest about 4 cm. x 2 cm., 4 cm. away inferior angle of Rt. scapula. Reddish bluish in colour, swelling and tenderness is present.

Cause of injury.--Due to hard blunt object.

Duration of injury.--Within six hours.

Type of injury.--All are simple.

Autopsy on the cadaver of the deceased was performed on 6.6.1979 at 12 noon and according to the doctor, death of the deceased has occurred due to ante-mortem injuries. Doctor has noted following external injuries which were detected on the body of the deceased :

ANTE MORTEM INJURIES

(1) Abrasion - 1 cm. x 1 cm. on Rt. side chest upper part (Just above upper border of Rt. breast).

(2) Abraded contusion - 1.5 cm. x 1 cm. on left side chest upper 1 cm. below left clavicle.

In the aforesaid background, I have heard Dr. Abida Syed, learned amicus curiae, who has been assisted by Sri S. K. Mishra. learned advocate for the appellants and Sri Patanjali Mishra, learned A.G.A. for the respondent-State.

Castigating the impugned judgment of conviction, it was contended that the F.I.R. is ante timed, manner of assault alleged by the prosecution is false and fabricated as no such incident ever occurred and, In fact, injured had sustained injuries in a theft/dacoity incident during commission of which deceased had slipped from the staircase and died. Next, it was contended that the place of the incident is not fixed and the F.I.R. is ante timed. It was also submitted by Sri S. K. Mishra, appellant counsel, that the F.I.R. has not been lodged by the informant and there was motive for the prosecution side to frame-in the appellants in a taradiddle

Learned A.G.A. argued to the contrary and submitted that the prosecution witnesses had no animus to create a hokum against the appellants and their testimonies are unimpeachable and do not suffer from any embellishment, contradiction or untruthfulness and consequently. appellants guilt is well anointed to the hilt and since, appellants conviction is well merited, it does not require any interference by this Court and resultantly appeal lacks merit and be dismissed.

I have considered the arguments raised by both the sides and have vetted through oral and documentary evidences. From such an exercise it is emerged that the incident occurred because of taking out of door by one telha. The version of the prosecution in that respect is consistent and the defence, in spite of best efforts, had not been able to dislodge said allegation. Since prior to the incident there was no love labour lost between both the sides and both of them had ample motive to act against each other. Animosity being a double edged weapon, could have been wielded by either side, but since it is case of direct evidence therefore, motive relegates into the background. However, convincing facts reveal that none of the prosecution witnesses had any reason to frame-in the appellants in a fabricated story and they had no reason to testify fib.

Appreciation of evidences further indicate that the deceased had died during the incident because of brick assault and in the same incident injured had sustained injuries. Doctors, who had examined the injured and conducted post-mortem examination were not seriously challenged by the defence on the aforesaid score. A bald suggestion that the injuries sustained by the injured could be possible by other weapons, does not lead to adverse conclusion against the prosecution. Defence suggestion that the deceased had fallen from the staircase also does not inspire any confidence as there is total absence of any material in that respect. None of the fact witnesses were questioned on that aspect and hence defence suggestion seems to be conjectural and hypothetical. All the fact witnesses were clear, cogent and unambiguous in stating that it was appellant Sahibujafar, who had caused injury by brick on the breast of the deceased, who was a septuagenarian, and sustaining the injuries, she had fell down on the ground and expired and others had pelted bricks causing injuries to the injured. This prosecution story from its very inception is mentioned in the F.I.R. and during trial had not been resiled at any point of time and, therefore, all the fact witnesses have given consistent, reliable and creditworthy depositions, which cannot be castigated as untruthful.

At this juncture, one of the argument raised by Sri Mishra. appellant counsel, is to be considered and that is that the F.I.R. does not contain the name of the scribe. This fact, to say the least, does not affect the merits of case at all. Informant described himself as Jahil (illiterate person) and hence could not state the reason for that insignificant aspect. This speaks volume so far as truthfulness of deposition of the informant is concerned. The criticism levelled by counsel for the appellants, therefore, is repelled.

Site plan map, Ext. Ka-9. Indicates conspicuously the place where incident had occurred and hence no capital can be made out of it. Regarding defence argument that place of incident is not fixed, only this will suffice to be observed that when the Investigating Officer Lok Nath Ram (P.W.4) was in the witness box, he was not tested on the said aspect of the matter at all. What is most bizarre and surreal is that none of the fact witnesses were ever suggested by the defence that the incident of theft/dacoity occurred in informant''s house. It was for the aforesaid defence that much of the submissions were urged in this appeal. Unless the prosecution witnesses were afforded an opportunity on that aspect of the matter, the argument raised by appellants'' counsel loses all it''s efficacy and are in total vacuum. I. therefore, have got no hesitation in rejecting the same outright.

Now coming to the most contentious issue of the appeal, it is noted that according to the prosecution case itself, appellants had arrived at the place of the incident asking for the door, which was taken by telha. They, started vituperating the prosecution side. After being forbade from using such an abusive language, they did not budge. It is the prosecution version itself that the prosecution side thereafter engaged themselves in a verbal onslaught. It was in the midst of these fire of abusive languages that the instigator Habibullah instigated. His instigation. however, was not acted upon by all other accused persons except Sahibujafar, who had caused fatal injuries to the deceased. In such a view, the common object of causing death of the deceased did not pervade all the accused. Therefore there was absence of common object to commit deceased''s murder and it had not occasioned at the spur of the moment also. Assault on the deceased was an individual act of only one of the accused at the instigation of another and hence conviction of all the accused with the aid of Section 149 is illegal and unsustainable. What has been proved beyond doubt that only Sahibujafar. acted individually sans other accused, who had not shared or harbingered his object. In such a view, conviction of all the appellants u/s 304/ 149, I.P.C. is unsustainable as assault on the deceased was the first assault and later on It was followed by brick bats.

Another important aspect is that only one of the injured had sustained a single grievous injury, which has not been specifically attributed to any of the accused and. therefore, conviction of all the appellants for the charge u/s 325/ 149, I.P.C. is also unsustainable.

From the proven facts, appellants could have been convicted only u/s 323, I.P.C. read with Section 147, I.P.C. Sahibujafar, who had caused injury to the deceased, seems to have committed an offence only u/s 304(II), I.P.C., as the post-mortem examination report of the deceased does not indicate that she had sustained any internal damage. Her injury in the autopsy report has been described as abrasions only. Autopsy doctor had also not testified before the Court that there was any grievous injury on her body. In such a view, conviction of Sahibujafar u/s 304 (I), I.P.C., also is unsustainable and his guilt will not transgress purview of Section 304(II), I.P.C. for which, crime he certainly is liable. So far as appellant Habibullah is concerned, it was he, who had instigated his associates and, therefore, he could have been convicted with the aid of Section 34, u/s 304 (ID/ 34, I.P.C.

Appeal record further revealed that two of the appellants Habibullah and Mohd, Ishtahaq have expired and, therefore, their appeals have already been abated long back.

Concluding discussion conviction of appellants Samshuddin, Sirajuddin and Sahibujafar under Sections 323/ 149, 147 I.P.C. are hereby sustained, but for rest of the offences, their conviction are set aside. Conviction of appellant Sahibujafar is diluted from Section 304(I), I.P.C. to 304(II), I.P.C.

Coming to the sentence part, incident had occurred at the spur of the moment in heat of passion more than three decades ago. None of the appellants had any criminal proclivity. Both sides engaged themselves in an abusive tirade and it was in the midst of the said tirade that the incident had occurred. Injuries caused to the deceased were simple in nature. Bricks were pelted by the accused persons, which does not indicate any intention or knowledge to commit murder. All the appellants, as on date are septuagenarian. They, therefore, deserve a sympathetic consideration.

Looking to the overall facts and circumstances of the case, period undergone interregnum, in my opinion, fine of Rs. 1,000 on each of the three appellants u/s 323/ 149, I.P.C., Rs. 5,000 u/s 147, I.P.C. and three years'' imprisonment with fine of Rs. 20,000 on appellant Sahibujafar for offence u/s 304(II), I.P.C. simplicitor will meet the ends of justice. In such a view, appeal is allowed in part. All the appellants are convicted under Sections 323/ 149 and 147, I.P.C. and are sentenced u/s 323/ 149, I.P.C. to pay a fine of Rs. 1,000, and u/s 147, I.P.C. to pay a fine of Rs. 5,000. Appellants are allowed one month time to deposit the entire amount of fine, failing which they shall serve one month R.I., as default sentence u/s 323/ 149, I.P.C. and three months R.I. as default sentence u/s 147, I.P.C. Appellants are on bail. Except Sahibujafar, rest need not surrender but their surety bonds and bail bonds shall be discharged only after they have deposited the fine or are arrested to serve out default sentence.

Appellant Sahibujafar is further sentenced to three years R.I. with fine off Rs. 20,000 u/s 304(II). I.P.C. If said appellant deposit the fine, Rs. 10,000 out of it, shall be handed over to the informant as compensation for the injury caused to him. Said appellant is allowed one month time to deposit the said fine failing which he shall serve one year R.I. as default sentence for the said charge.

Appellant Sahibujafar is directed to surrender, his surety and bail bonds are cancelled. Learned trial Judge is directed to take him in custody and lodge him in jail to serve out the sentence awarded herein above.

Let a copy of the judgment be certified to the trial court for it''s intimation.