Imtiyaz & Anr. vs State

(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)

Heard Sri A.K.S. Vais and Sri Vidit Narayan Mishra, learned counsel for the appellants, learned A.G.A. for the State and perused the judgment as well as record of the Trial Court.

This criminal appeal has been preferred by the convicts, Imtiyaz and Farooq, against the judgment and order dated 30.07.1990 passed by learned Ist Additional Sessions Judge, Bulandshahr in Sessions Trial No. 238 of 1986 (State v. Imtiyaz and another) arising out of Case Crime No. 124 of 1986, under Sections 302 IPC, Police Station Sikandrabad, District Bulandshahr.

The prosecution case in brief is that informant Dalsher (PW-1) has lodged a first information report on 16.03.1986 at 05:45 P.M. with regard to an incident which took place on 16.03.1986 at 05:00 P.M. against Farooq and Imtiyaz, both sons of Ramjani, at Police Station Sikandrabad, District Bulandshahr with the allegation inter alia that “his name is Dalsher and his father’s name is Mohammad Ishaq, Caste Mev, resident of Village Bhavra, Police Station Gulawathi. I am residing with my family in a house constructed by me in Mohalla Gorkhi Ansariyan, Town Sikandrabad for about 16 years. Approximately one and a half years ago, my uncle Ramjani came from Village Bhavra and started living in a hut constructed behind my house. At the time of purchasing the land, my uncle had borrowed Rs. 3500/-. About four months ago, my brother Jangsher demanded repayment of the money from him. Thereupon, my uncle Ramjani and his son Farooq assaulted my brother Jangsher, accusing him of teasing their daughter. Since then, Farooq had been harbouring a grudge against my brother Jangsher. Today, i.e., 16.03.1986, I and my brother Jangsher were going to the market to purchase some articles of embroidery. At about 05:00 PM, when we reached in front of the flour mill of Wahab, we met Farooq and his elder brother Imtiyaz. When my brother Jangsher demanded repayment of the money from Farooq and Imtiyaz, then Imtiyaz caught hold of my brother Jangsher, and Farooq stabbed him with a knife. Seeing this, I and the witnesses present at the spot, namely Saddiq son of Jasmal and Sabu, son of Rahim Khan, residents of Mohalla Ansariyan tried to apprehend them. However, they intimidated with the knife and fled away from the spot. I saw my brother Jangsher. He had a knife wound on his back, from which blood was oozing. I was taking my brother for medical treatment after lifting him, but he succumbed to his injuries. I have left the dead body of my brother Jangsher at home and have come to the police station to get the report lodged.

On the basis of the oral information given by informant Dalsher (PW-1) at Police Station Sikandrabad, District Bulandshahr, Head Constable Balveer Singh (P.W. 7) registered a First Information Report (Exhibit Ka-1) against convict-appellants Imtiyaz and Farooq at Case Crime No. 124 of 1986 under Section 302 IPC. The case was handed over to S.S.I. Ambesaran Gupta (P.W. 6) for investigation. The Investigating Officer Ambesaran Gupta (P.W. 6) reached at the place of occurrence. He appointed panchan for preparing the panchayatnama of the deceased Jangsher and he prepared the panchayatnama of the deceased (Exhibit Ka-5). The Investigating Officer also prepared challan lash (Exhibit Ka-6), photo lash (Exhibit Ka-7), letter to C.M.O. (Exhibit Ka-8), second letter to C.M.O. (Exhibit Ka-9) and letter to R.I. (Exhibit Ka-10). The dead body of the deceased was sealed and handed over to Constable Mahesh Chand and Nem Pal for conducting the post-mortem examination. The Investigating Officer also prepared site plan of the place where the dead body of the deceased was kept as Exhibit Ka-11. He also took simple soil and blood-stained soil from that place and prepared a recovery memo as Exhibit Ka-12. Thereafter, he inspected the place of occurrence where the incident happened and the crime was committed by the accused, and prepared site plan (Exhibit Ka-13). Apart from that, the Investigating Officer also prepared a site plan from where a knife was recovered at the pointing out of the appellant Farooq, at a tubewell room in Village Mithepur beneath the thresher machine, and also prepared the site plan as Exhibit Ka-16. After completing all the formalities of the investigation and recording the statements of the witnesses, the Investigating Officer submitted a charge sheet (Exhibit Ka-17) against the appellants.

Dr. S.B. Agarwal (P.W. 4) examined the dead body of the deceased Jangsher on 17.03.1986 and prepared the post-mortem report (Exhibit Ka-2). He found following ante-mortem injuries on the dead body of the deceased Jangsher:

Since the case was exclusively triable by the Court of Session, hence learned concerned Magistrate committed the case to the Court of Session for trial.

The learned trial Court framed a simpliciter charge against convict-appellant Farooq under Section 302 IPC on 13.08.1986 and also framed charge against convict-appellant Imtiyaz under Section 302/34 IPC on 13.08.1986. The convict-appellants denied the charges and claimed trial.

In support of its case, the prosecution adduced informant Dalsher (PW-1), Saddiq (PW-2) and Bhagmal (P.W. 5) as witnesses of facts and Mahesh Chand (P.W. 3), Dr. S.B. Agarwal (P.W. 4), Ambesaran Gupta (P.W. 6), Balveer Singh (P.W. 7) and Mahendra Singh (P.W. 8) have been adduced as formal witnesses. Apart from the above oral evidence, the prosecution also relied on documentary evidence from Exhibits Ka-1 to Ka-18.

In the trial Court, the evidence of the prosecution witnesses was recorded and after completing the recording of the prosecution evidence, the convict-appellants were examined under Section 313 Cr.P.C. In their statements under Section 313 Cr.P.C., the convict-appellants gave answers as "wrong" in respect of the questions put to them. They also expressed ignorance about the facts which were written in the questions under Section 313 Cr.P.C. They further stated that they were falsely implicated in this case due to enmity. They have also stated that the informant wanted to take the land of their father, which was situated on the backside of the house of the informant, and their father had sold his land to Arif. Due to this reason, the informant falsely implicated them in this case. Convict-appellant Imtiyaz stated that he is the real brother of accused Farooq, and hence he was falsely implicated in this case.

Learned trial Court, after hearing the arguments of the prosecution and the defence, held the convict-appellants guilty for commission of the crime. Learned trial Court convicted appellant Imtiyaz under Section 302/34 IPC and appellant Farooq under Section 302 IPC to undergo life imprisonment. Each of the appellants was also sentenced with a fine of Rs. 2,000/-, and in default of payment of fine, they were further sentenced to undergo six months additional rigorous imprisonment.

Being aggrieved by the judgment and order of conviction and sentence passed by learned trial Court dated 30.07.1990, the appellants have preferred this criminal appeal before this Court.

It is worthwhile to mention here, before considering the submission of learned counsel for the appellant, that appellant no. 2 Farooq died during pendency of this criminal appeal before this Court. By the order dated 13.03.2006, the criminal appeal in respect of appellant no. 2 Farooq has abated. Therefore, the criminal appeal only survives for adjudication in respect of appellant no. 1 Imtiyaz and we are adjudicating the criminal appeal in respect of the surviving appellant no. 1 Imtiyaz only.

Learned counsel for the surviving accused-appellant no. 1, Imtiyaz, has submitted that the main accused, who assaulted the deceased Jangsher with a knife has died. Only role assigned to the surviving appellant Imtiyaz is that he caught hold of the deceased Jangsher from the front side, and thereafter the deceased-appellant Farooq assaulted the deceased Jangsher on his backside with knife. Whatever hot talk, grievance and jealousy the informant, Dalsher, had, that was with the deceased appellant, Farooq. However, only on the ground of the so-called catching hold by the appellant no. 1 Imtiyaz to deceased Jangsher, the trial Court, without properly and legally appreciating the evidence of the prosecution, has wrongly held him guilty and convicted him under Section 302 IPC with the aid of Section 34 IPC. Prosecution witnesses such as Dalsher (PW-1) and Saddiq (PW-2) had deposed against the appellant Imtiyaz without any incriminating material and evidence against him by assigning him the role of catching hold the deceased Jangsher. This fact and circumstances show that the knife was recovered at the pointing out of the deceased-appellant Farooq, but being the brother of the deceased-appellant Farooq, the prosecution, falsely with a view to harass Ramjani, father of the appellants, wrongly implicated the surviving appellant Imtiyaz for commission of the alleged crime. For convicting any accused with the aid of Section 34 IPC, a clear-cut finding must be given by the learned trial Court about pre-plan, prior meeting of minds, and pre-concert for the commission of the alleged crime. However, learned trial Court has not considered or given any finding and reasoning about pre-plan, prior meeting of minds, or pre-concert of the surviving accused-appellant with his deceased-brother Farooq for the commission of the alleged crime. It is also submitted by learned counsel for the appellant that the learned trial Court has not appreciated the prosecution evidence in proper perspective and in a legal manner. Learned trial Court has not deeply and consciously scrutinized the evidence of the prosecution witnesses and only on the evidence of the prosecution witnesses that the surviving accused-appellant Imtiyaz caught hold of the deceased Jangsher, held him guilty without critically examining whether the surviving accused-appellant Imtiyaz had a prior meeting of minds, pre-plan or pre-concert with his deceased brother Farooq for the commission of the alleged crime or not. Learned counsel for the appellant has further submitted that the findings and reasoning of learned trial Court are not based on cogent evidence or sound legal principles in this regard. Therefore, it is submitted on behalf of the surviving appellant that the surviving appellant Imtiyaz had no role or concern in respect of the commission of the crime with his brother Farooq. Hence, his conviction under Section 302 read with Section 34 IPC for the alleged commission of the crime is liable to be set aside for this reason. Accordingly, the appeal of the surviving appellant is liable to be allowed and the judgment and order of conviction and sentence passed by learned trial Court dated 30.07.1990 is liable to be set aside.

Per contra, learned A.G.A. for the State has submitted that informant Dalsher (PW-1), brother of the deceased Jangsher, and Saddiq (PW-2) are the eye-witnesses in this case. Before the eyes of PW-1 and PW-2, the incident had happened on the date and time of the incident. When the deceased Jangsher with his brother, informant Dalsher, were going to purchase articles of embroidery, then on the way both appellant Imtiyaz and deceased-appellant Farooq came there. Surviving appellant Imtiyaz caught hold of the deceased Jangsher from the front side and deceased-appellant Farooq assaulted him with a knife on his back, thereby causing instant death of the deceased Jangsher. Prosecution witnesses have clearly stated that Farooq assaulted with a knife on the backside of the deceased Jangsher and the surviving appellant Imtiyaz caught hold of him from the front side of the deceased Jangsher, thereby facilitating the commission of the crime. It is also submitted by learned A.G.A. that the oral evidence of the prosecution has found support and corroboration from the medical evidence. There are no major or material contradictions in the evidence of the prosecution. There is no ground for false implication of the appellant by the prosecution. Learned trial Court has appreciated the prosecution evidence in proper perspective and in a legal manner. Trial Court has delivered a finding of conviction and sentence based on the cogent and reliable evidence of the prosecution. There is no illegality or perversity in the order of conviction and sentence dated 30.07.1990. Hence, the criminal appeal of the surviving appellant, Imtiyaz, is devoid of merit and is liable to be dismissed and the judgment and order of conviction and sentence dated 30.07.1990 is liable to be affirmed.

In the light of the rival submissions of learned counsel for the parties, we have gone through and perused the entire evidence, both oral and documentary, as available on record. From perusal of the First Information Report (Exhibit Ka-1), we find that the surviving appellant, Imtiyaz, has been named along with his brother, Farooq, for the commission of the alleged crime.

From perusal of the evidence of the informant, Dalsher (PW-1), we find that informant Dalsher (PW-1) and his younger brother, deceased Jangsher, were original residents of Village Bhamra, Police Station Gulawathi, District Bulandshahr. About 16 years prior to the date of the incident, the informant along with his family came to Mohalla Gorkhi Ansariya at Sikandrabad, where he purchased land in that locality, constructed a house and started residing there with his family and his younger brother. About one and a half years prior to the date of the incident, the uncle of informant Dalsher (PW-1), namely, Ramjani, also came with his family to Mohalla Gorkhi at Sikandrabad and constructed a thatched hut (chhappar) on his own land in the backside of the informant's house and began to live there. Along with Ramjani, his two sons, the elder son, appellant no. 1 Imtiyaz, and the younger son, appellant no. 2 Farooq, were also residing with him. According to the prosecution story and as per the evidence of informant Dalsher (PW-1), the uncle of the informant, Ramjani, at the time of purchasing the land and constructing the hut, had taken Rs. 3500/- from informant Dalsher (PW-1). However, Ramjani had not returned the borrowed amount of Rs. 3500/- to Dalsher (PW-1). Thereupon, about four months prior to the incident, the deceased Jangsher, brother of informant Dalsher (PW-1), demanded the borrowed money from uncle Ramjani and his son Farooq. Upon this, Ramjani and his son Farooq alleged to deceased Jangsher that “you are molesting my daughter” and Ramjani and Farooq beaten up deceased Jangsher. From that time onwards, Farooq harbored enmity against the deceased Jangsher.

Thus, from the evidence of informant Dalsher (PW-1), it is revealed that whatever enmity existed between the prosecution and the defence, that enmity was solely between Jangsher and Farooq, son of Ramjani. On the issue of the alleged molestation of the daughter of family of Ramjani, Ramjani and Farooq had beaten the deceased Jangsher on that account. Thus, it is clearly revealed that if there was any enmity, it was only between the deceased Jangsher and the deceased-appellant, Farooq. However, we find that during the occurrence of the incident, the role of catching hold of the deceased has been assigned to the surviving appellant, Imtiyaz, in the First Information Report (Exhibit Ka-1) as well as in the evidence of informant Dalsher (PW-1) and witness Saddiq (PW-2).

From perusal of the First Information Report (Exhibit Ka-1) as well as the evidence of Dalsher (PW-1) and Saddiq (PW-2), we find that on the date and time of the incident, when informant Dalsher (PW-1) along with his brother Jangsher was going to purchase embroidery items, on their way near the flour mill of Wahab, Jangsher again demanded the borrowed money, upon that Imtiyaz caught hold of the deceased Jangsher, and the deceased-appellant, Farooq, assaulted the deceased Jangsher with a knife on his back. Therefore, from perusal of the entire deposition of informant Dalsher (PW-1) and Saddiq (PW-2) and even from perusal of the First Information Report (Exhibit Ka-1), we find that only the simple role of catching hold of the deceased Jangsher has been assigned to Imtiyaz by prosecution witnesses Dalsher (PW-1) and Saddiq (PW-2). From perusal of the entire evidence of the prosecution, we find no other incriminating evidence, either in the form of testimony or in the form of recovery of any incriminating article or object, against the surviving appellant, Imtiyaz, regarding the commission of the crime. However, learned trial Court has held the surviving appellant, Imtiyaz, guilty and convicted him with the aid of Section 34 IPC for the alleged commission of the crime.

From perusal of the entire evidence, we find that whatever enmity existed on the part of informant Dalsher (PW-1), it was solely with the deceased appellant, Farooq, who was the son of Ramjani, the uncle of informant Dalsher (PW-1). However, we find that without considering these material facts and circumstances and without keeping in mind the essential ingredients of Section 34 IPC, such as, pre-arranged plan, prior meeting of minds, or pre-concert with the co-accused for the commission of the crime, learned trial Court, without recording any definite finding regarding the aforesaid ingredients of Section 34 IPC and without evaluating the evidence in this regard, simply convicted and sentenced the surviving accused-appellant, Imtiyaz, with the aid of Section 34 IPC for the alleged commission of the crime merely on the ground of the so-called catching hold of the deceased Jangsher from the front side.

On Section 34 IPC, a four-judges Bench of the Supreme Court in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 held in para 6 as follows :

Thus, in the light of the law as enunciated by the Hon’ble Supreme Court in the case of Krishna Govind Patil (supra), it is clear that for the conviction of any accused with the aid of Section 34 IPC, the Court must critically examine and appreciate the entire evidence of the prosecution to see whether the prosecution is able to adduce evidence beyond reasonable doubt that, under a common intention, the surviving accused-appellant, Imtiyaz, had a prior meeting of minds and a pre-arranged plan with his brother deceased-appellant, Farooq, as well as pre-concert or prior concert with the deceased-appellant, Farooq, for the commission of the alleged crime.

From perusal of the findings and reasoning as given by learned trial Court in the judgment and order of conviction and sentence dated 30.07.1990, we find that there is no reference or discussion of the evidence of the prosecution in respect of the essential ingredients of common intention, such as, pre-arranged plan, prior meeting of minds, and prior concert between the surviving appellant, Imtiyaz, and the other deceased-appellant, Farooq, for murdering the deceased Jangsher. We find that there is no evidence regarding the ingredients of common intention under Section 34 IPC, such as, pre-arranged plan, prior meeting of minds, and pre-concert with the deceased-appellant, Farooq, on the part of the accused-appellant, Imtiyaz. Trial Court, merely on the basis of the simple statements in the First Information Report (Exhibit Ka-1) and in the evidence of Dalsher (PW-1) and Saddiq (PW-2) that the surviving appellant, Imtiyaz, caught hold of the deceased, Jangsher, from the front, whereafter the deceased-appellant, Farooq, assaulted him with a knife on the backside of his body, thereby causing the death of the deceased Jangsher. Without evaluating and appreciating the prosecution evidence in the light of the essential ingredients of Section 34 IPC, trial Court held guilty and convicted the surviving appellant, Imtiyaz, against the settled principles of law as laid down by the Hon’ble Apex Court in the case of Krishna Govind Patil (supra). Furthermore, no incriminating recovery, such as, the murder weapon (knife), was made from the possession or at the instance of the surviving appellant, Imtiyaz. The so-called weapon of murder, i.e., the knife, was recovered solely at the instance of the deceased appellant, Farooq, from the tubewell of Wadullah in Village Mithhepur, where it was kept hidden beneath a thresher machine inside a locked room of the tubewell. .

Thus, from appreciation of the entire evidence of the prosecution, such as, informant Dalsher (PW-1) and Saddiq (PW-2), it is revealed that the surviving appellant, Imtiyaz, has no role in the commission of the alleged crime. It appears that since Imtiyaz was the elder son of Ramjani, uncle of informant Dalsher (PW-1) and the elder brother of the deceased-appellant, Farooq, due to this reason, the informant has implicated the surviving appellant, Imtiyaz, in this case for the commission of the alleged crime. Although there was no altercation, grudge or hot talk between the deceased, Jangsher, and the surviving appellant, Imtiyaz, therefore, from perusal of the entire evidence of the prosecution as available on record, we find that the involvement of the surviving appellant, Imtiyaz, in this case by informant Dalsher (PW-1) appears to be doubtful and suspicious. It also appears that the prosecution sought to involve and implicate both sons of his uncle, Ramjani, so that family of Ramjani would be ruined due to both his sons being in jail for the commission of a heinous crime like murder.

Thus, in the light of the above discussions, we find that in the absence of evidence regarding pre-arranged plan, prior meeting of minds, or pre-concert with the co-accused (deceased Farooq), the conviction of the surviving appellant, Imtiyaz, with the aid of Section 34 IPC cannot legally be sustained.

From perusal of the findings and reasoning of trial Court, we find that trial Court has not appreciated the prosecution evidence in proper perspective and in a legal manner, particularly in the light of the necessary ingredients of Section 34 IPC, such as, pre-arranged plan, prior meeting of minds, and pre-concert with the co-accused for the commission of the crime. Hence, in view of the aforesaid discussion and reasons, we are of the opinion that the surviving appellant, Imtiyaz, deserves to be acquitted by giving him the benefit of doubt in the present case.

In view of the above, we find and held that finding and reasoning given by trial Court by which surviving accused-appellant, Imtiyaz, was held guilty for the alleged offence are liable to be set aside by giving him the benefit of doubt.

In view of the above, we find that judgment and order of conviction and sentence dated 30.07.1990 passed by learned trial Court is liable to be set aside and the criminal appeal of the surviving accused-appellant, Imtiyaz, is liable to be allowed by giving him the benefit of doubt.

The criminal appeal is allowed. Accordingly, we set aside the impugned judgment and order dated 30.07.1990 of conviction and sentence passed against the surviving accused-appellant, Imtiyaz, by learned Ist Additional Sessions Judge, Bulandshahr in Sessions Trial No. 238 of 1986 (State v. Imtiyaz and another) arising out of Case Crime No. 124 of 1986, under Sections 302 IPC, Police Station Sikandrabad, District Bulandshahr. The surviving appellant, Imtiyaz, is acquitted of the charge under Sections 302/34 IPC, by giving him benefit of doubt.

From perusal of the order-sheet, we find that the surviving appellant, Imtiyaz, was on bail and, at the time of hearing of the appeal, on account of non-appearance of the appellant or his counsel, a non-bailable warrant was issued against him and in compliance thereof, the appellant has been arrested and since then he is languishing in jail, he shall be released from prison forthwith unless wanted in connection with any other case.

Let a copy of this judgment be sent to the learned trial Court forthwith along with the trial court record for compliance.