Hamid vs State of U.P.

Rakesh Tiwari, J

Heard Sri Rahul Misra counsel for the appellant, Sri Shashi Singh & Sri K.N. Bajpai, learned A.G.A. and perused the record.

This criminal appeal has been preferred challenging the validity and correctness of judgment and order dated 22.10.2008 passed by Sri S.C. Jain, Additional Sessions Judge, Court no. 6, Bulandshahr in session trial No. 318 of 2004, State Vs. Usman and nine others, connected with session trial no. 323 of 2004, State Vs. Hamid, arising out of case crime No. 12 of 2004, U/s 147,148,149,323,324,504,506, 307,302 IPC, Police station Arnia, by which appellant Hamid has been convicted under section 302 IPC inclusive of the offence under section 324, 307 IPC and sentenced to life imprisonment with fine of Rs. 25000/ thereunder and in case of default in payment of the fine, appellant Hamid was directed to undergo further R.I. for one year. Accused Usman, Suleman, Shamshad, Abid, Sakir, Wakar, Shahid, Jakir, Sajid and Majid were acquitted of the offences punishable under sections 147,148,302/149, 307/149,, 323/149 & 324/149 IPC.

As both sessions trials arise out of the same case crime number, therefore, they were consolidated, heard and decided together by a common judgment by the court below.

The impugned judgment has been assailed on the ground that it is against the weight of evidence on record; that presence of the alleged eye witnesses at the scene of occurrence appears to be highly doubtful; that no reliance can be placed on the testimony of interested witnesses in the absence of corroboration and as no offence under section 302 IPC is made out against the appellant,hence the appellant is entitled to acquittal and lastly that for the aforesaid reasons the punishment is too severe. The appellant is jail since 6.2.2004.

Briefly stated the prosecution case is that filter of a tractor belonging to some unknown person fell down on the road which was picked up by a shepherd, who handed over the same to Sarafraj, cousin brother of the first informant, saying that filter belongs to the tractor ploughing their fields and therefore be returned to its rightful owner. At the same time, Azim and Nazim sons of accused Usman came and started claiming that the filter belonged to them and be handed over to them. Some altercation took place between the parties and the accused persons are said to harbouring grudge against the first informant and his family on this trivial issue which has culminated into shape of the present incident.

In the aforesaid backdrop, it is alleged on 6.2.2004 at about 9 A.M., accused persons attacked the house of first informant. Accused Usman and appellant Hamid were armed with their licenced single barrel guns while Suleman, Shamshad, Abid, Sakir, Waker, Shahid, Jakir, Sajid and Majid were armed with Katta & lathis and are also said to have used their respective weapons. Appellant Hamid who was armed with his licensed single barrel gun, opened fire at Sarafraj, as a result of which he sustained fire arm injury and succumbed to death on the spot. In the incident, Ashik, Shaukat, Jannat wife of Shaukat, Fatima wife of Ashiq Ali, Sakra wife of Sadik Ali, Parvez, Sadik Ali and first informant also received injuries. The incident is said to be witnessed by Yasin, Dilshad, Baggan and Majid Khan.

A first information report of the incident on the basis of written report by Raj Kumar Singh was lodged by Shahid Ali at police station Arania, on the basis of which case crime No. 12/2004, under section 147,148,149,307,302,323,504,506 IPC was registered at 9.30 A.M. same day.

Investigation of the case was undertaken by S.I. Pritam Singh Rawat, who inspected the place of occurrence and prepared site plan. Sub Inspector R.P. Singh who accompanied him prepared Panchayatnama of the dead body of deceased Sarafraj and prepared necessary papers for sending the dead body for post mortem.

The postmortem of Sarfaraj (deceased) was conducted by Dr. Subhash Chandra Sharma (P.W. 9) who was working as surgeon in District Hospital, Bulandshahr on 6.2.2004. The postmortem was conducted by him at about 11. 45 P.M. and according to the report following ante mortem injuries were received by the deceased in external and internal examination of the body of Sarfraj.

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According to the opinion of the doctor, the death occurred due to excessive haemorrhage and shock about half day before the post mortem.

I.O. Pritam Singh Rawat in the meantime recorded statement of the witnesses under section 161, Cr.P.C. and arrested accused Usman, Hamid (appellant) Abid, Jakir, Waker and Sakir from their house. Licenced guns were also recovered from Usman and appellant Hamid. The gun recovered from appellant Hamid was in broken and an empty cartridges was also recovered from it. Recovery memos were accordingly prepared accordingly and the injured persons were sent to the Govt. hospital for their medical examination. The guns recovered from Usman and appellant Hamid were sent to Vidhi Vigyan Prayogshala, Agra. Thereafter, further investigation in the matter was conducted by S.I. Yaduraj Singh. After completion of the investigation, charge sheet was submitted against the accused persons.

Accused Usman and appellant Hamid were charged on 3.7.2004 under section 148,302/149,307/149,323/149, 324/149 IPC and the remaining accused were charged under section 147,302/149,307/149,323/149,324/149 IPC. They pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case, examined nine witnesses i.e. P.W.1 Shahid, P.W.2 Asif, P.W.3 constable Vijay Singh, P.W.4 Dr. Jaipal Singh, P.W.5 Dr. Suresh Chandra, P.W.6 S.I. Pritam Singh (I.O.), P.W.7 Yaduraj Singh (I.O.), P.W.8 S.I. R.P. Singh and P.W.9 Dr. S.C. Sharma, and proved written report Ex. Ka1, recovery memo of two guns Ex. Ka2, chik FIR Ex. Ka3, G.D. Ex. Ka4, injury reports of Asif, Shaukat Khan, Shakra, Jannat, Fatima, Parvej, Shahid, Sadik Ali Ex. Ka5 to Ex. Ka12, site plan Ex. Ka20, recovery memo of guns Ex. Ka21, Charge sheet Ex. Ka13, post mortem report of deceased Sarafraj Ex. Ka 14, Inquest report Ex. Ka15, Challan Lash Ex. Ka16, photo Lash Ex. Ka17, Letter to C.M.O. Ex. Ka19, Report of Vidhi Vigyan Prayogshala Ex. Ka22, and recovery of guns, empty cartridge, blood stained soil and clothes during investigation as material Ex. Ka1 to Ex. Ka7.

The accused persons in their statements recorded under section 313, Cr.P.C. denied the allegations of the prosecution story and also examined D.W.1 Shaukat Khan, D.W.2 Sadik Ali and D.W.3 Abdul Majid in support of their case. Case of the defence was of self defence inter alia that the informant side were the aggressors who had come to their house and started Marpeet.

In this incident, as many as eleven persons faced the trial but considering case of the parties and on the basis of the evidence & materials on record as well as compromise filed in the case, the remaining accused persons were acquitted whereas appellant Hamid has been convicted and sentenced under section 302 IPC.

Contention of the counsel for appellant is that there is no motive assigned for the incident and the manner in which assault according to the prosecution story is said to have take place, is not established; that place of the occurrence is also doubtful which is apparent from the manner in which the accused have been arrested sitting on cots in their house and recovery of weapons from their possession said to have been used by Hamid some time after the incident is highly doubtful as according to ballistic Lab report it could not be used for firing. It is urged that D.W.1 Shaukat Khan, D.W.2 Sadik Ali and D.W.3 Abdul Majid are related to informant side and deceased Sarafraj was also related to the informant but D.W.1 Shaukat Khan and D.W.2 Sadik Ali in their statements have clearly stated that there was some altercation amongst children of the two sides whereupon women started pelting stones from both the sides and a large crowd had gathered and someone opened fire in the crowd which hit the deceased Sarafraj who died on the spot. He has then placed statement of D.W.3 Abdul Majid who also is related to the first informant and narrated almost the same story. According to the counsel for appellant, the statements of defence witnesses partially supports the prosecution story that on that fateful day and time, the women of the two sides were fighting, in which injuries were received by both the sides but it is not known as to who started Marpeet and who killed the deceased.

He also submitted that a compromise Paper no. 132A had been entered into by the parties which shows that the accused was not involved in the incident. It is urged that the accused persons have also received injuries which could not be explained by the prosecution, hence whole story in the manner as narrated by the prosecution should not be accepted.

Counsel for the appellant has relied upon the judgment rendered in Shiv Kumar V. State ( 1985 A.Cr.R.75), in which the Court observed that " If a standard gun is fired from a distance of 4 to 6 paces on the object, the dispersal of pellets to the extent of 15 cm x 13 cm in area is not probable and also there would be no dispersal of pellets possible from a standard gun if the weapon is fired from a distance of one foot, the pellets then will enter the object en masse. If there is dispersal of pellets in an area of 15 cm x 13 cm with blackening and singeing around the wound, it is probable that a country made pistol would have caused such a wound fired from a distance of 4 to 6 paces on the object."

He has also relied upon the decision rendered in Nathu Singh Yadav Vs. State of M.P.( 2003(1) JIC 36 (SC), in which the Apex Court took the view that into allegations of murder, precaution may be taken as it is not safe to place reliance on the evidence of prosecution witnesses in regard to the role played by appellant especially when the trial court refused to place reliance on the very same evidence in regard to other accused persons who have been acquitted.

Contention of the learned A.G.A. is that it is true that there appears to be some altercation between women of the two sides who started pelting stones at each other but it has clearly come on record that appellant Hamid and accused Usman had come there from different directions with gun in their hands and deceased Sarafraj died from the injury caused by the gun shot fired by appellant Hamid. He further states that evidence of D.W.1 Shaukat Khan, D.W.2 Sadik Ali and D.W.3 Abdul Majid should not be relied upon in support of the accused Hamid as other accused who are related to one another in both sides have been acquitted on the basis of compromise for they had no hand in the killing of the deceased. They have been acquitted of constituting an unlawful assembly whereas appellant Hamid has been held guilty for murder of deceased Sarfraj by his gun shot on bais of clear evidence of eye witness account. In this regard, reliance has been placed by learned A.G.A. upon the evidence of P.W.1 Shahid and P.W.2 Asif who are the eye witnesses of the incident and have given unshakable evidence of killing of Sarfraj.

It is also stated that from the evidence of P.W.3 Constable Vijay Singh who had registered the chik FIR on 6.2.2004 and had proved the G.D. entry, P.W.8 S.I. R.P. Singh, who prepared the inquest report and other papers regarding sending of dead body of the deceased for postmortem, P.W.6 S.I. Pritem Singh who had prepared site plan and had recovered guns from Hamid and Usman and empty cartridges and had taken samples of blood stained and plain soil and blood stained clothes as well as from the injuries of the injured persons proved by P.W. 4 Dr. Jaipal Singh, that the incident in fact had taken place. From the post mortem report, it is apparent that both lungs of the deceased were badly torn by the impact of pellets some of which had been recovered from the body of the deceased who had succumbed to the injuries. It is submitted that minor discrepancy or contradictions in the statements of witnesses would not at all be fatal to the prosecution case for the reason that some discrepancy may have crept into the statement of witnesses which have been given by them after a period of time. The witness cannot be expected to give photogenic description of the incident frame by frame. No evidence can be given by any witness measuring inch to inch the distance between the barrel of gun from which the deceased received fatal injuries so as to match dispersal of pellets as observed in Shiv Kumar versus State (supra).

From the site plan and recovery memo prepared on the spot from where blood stained and plain earth was taken for chemical examination, there remains no doubt regarding the place of the occurrence and in fact the statement of P.W.1 & 2 are exhaustive and corroborative in so far as the manner in which the incident is said to have taken place which demolishes the story of the accused persons that the informant side had assaulted with guns, lathis and other weapons.

The judgment in the case of Nathu Singh Yadav (supra) also does not help the appellant for the reason that in the instant case acquittal of certain persons have been on the basis of compromise of Marpeet and there was no evidence of their role in the murder of Sarfraj whereas it has come in ocular testimony that it was appellant Hamid from whose gun shot the deceased succumbed to the injuries. Therefore, acquittal of other persons is not based on the same evidence on which accused has been held to be guilty of the crime.

After considering the arguments advanced by learned counsel for the parties and on perusal of the record, we have come to a definite conclusion that appellant Hamid had fired from his gun from the place where he could be seen by the witnesses; that the incident had taken place partially in the manner as stated by the prosecution i.e. the incident had started on a trivial matter of fight between children of two sides; that as both sides are related to each other and therefore it is but natural that they would enter into compromise rather than to see that men & women from their respective side are sent to jail.

The counsel for the accused could not create any doubt in our mind inspite of his best efforts that accused Hamid was not guilty of offence under Section 302, which otherwise is well proved up to the hilt and beyond reasonable doubt by the prosecution. The Court below in our considered opinion has rightly believed the testimony of PW1 and PW2 of are eye witness of fact and has not committed any error in discarding the defence witness who had all the motive to give evidence in his favour after the compromise had been entered into the two sides. In our considered opinion, the factum of compromise further strengthens the case of the prosecution that the parties wanted only the person guilty of murder to the alter of the majesty of law in the case.

The plea of the counsel for the appellant in respect of self defence raised at the time of argument does not appeal to us for the reason that there is nothing to show that any person from the side of the accused received any injury in the same transaction much less than a serious or a grievous injury which could have given rise to a reasonable apprehension to the accused that death or grievous injury would be caused to them. The right of self defence of person may extend to the killing also but only where it is sufficiently proved that without taking such extreme action, death or grievous hurt would otherwise be caused to him. In the instant case, there is nothing to indicate that the deceased was around at the time of occurrence or that he did anything which could endanger the life of the accused.

The theory of brick batting between the women could hardly be a vindication for the accused to resort to the extreme measure of killing unarmed Sarfraj, the deceased. To us it does not seem to be a case of exceeding the right of self defence rather is a pure and simple case of murder.

The judgments relied upon by the appellant also do not help the case of the appellant in any manner as stated above.

The court below has therefore rightly additionally charged appellant Hamid with the offence punishable under section 302 IPC as it has come in evidence that he had fired his gun which hit and killed deceased Sarfraj.

For the reasons stated above, we find the appellant guilty under section 302 IPC and appropriately convicted and sentenced by the trial court.

There appears to be no perversity, infirmity or illegality in the findings and conclusions drawn as well as in acceptance of the compromise by the court below in so far as other accused persons are concerned and acquitting them in the manner as stated above in view of the compromise. The judgment and order of the court below is upheld. The appeal fails and is accordingly dismissed.

Sri Rahul Misra, amicus curiae for the appellant shall be paid Rs. 2000/ by the registry within three weeks.

Let a copy of this judgment and order be communicated to the C.J.M. concerned forthwith for necessary action.