Iqbal Ahmad vs State of U.P.

V.P. Mathur, J.—The Appellant Iqbal Ahmad son of Abdul Sattar, R/o village-Mahgaon, P.S. Pura Mufti, District Allahabad has come up against the order of his conviction u/s 302 IPC and sentence of life imprisonment and additional conviction u/s 323 IPC and sentence of rigorous imprisonment for one year, passed by Mr. B.N. Srivastava, the then IV Additional Sessions Judge, Allahabad on 25-5-1978.

The deceased in this case is Sayeed who was brother of PW 2 Rais Ahnud and also resident of village-Mahgaon. This occurrence took place on 5-1-1971 at about sun set which will be near about 6 P.M. The first information report was lodged by Basir injured PW 1 in police station-Pura Mufti, District-Allahabad which is at a distance of five miles from the place of occurrence at 7-00 P.M. on 5-1-1971. Saeed died on the spot and Bashir sustained injuries.

The prosecution story is that on 4-1-1971 there was a Khatna ceremony at the house of Kalloo Ansari since deceased. Bashir was there to prepare NANS and was doing that work, when the accused-Appellant Iqbal Ahmad reached there and prevailed upon him to prepare NANS of two kilograms of flour for him and agreed to pay 8 annas as wages on the next day. The breads (NANS) were prepared and handed over to him. Then on 5-1-1971 at about sun set Rashir PW 1 suddenly met Appellant Iqbal Ahmad near the cattle trough of Nanhu and asked for his wages. It appears that the accused-Appellant Iqbal Ahmad immediately got enraged and started giving blows with kicks and fists to him. It may be mentioned here that Bahsir was aged about-45 years at that time. He was so seriously thrashed that he fell down during the course of assault on him a number of times and bled. He cried out and Rais Ahmad PW 2, Saeed (the victim of this case) brother of Rais Ahmad, Dulare and Sabau all rushed to the place of occurrence. It is not disputed that these persons are residents of houses in the neighbourhood of the scene of occurrence. On seeing them and specially Sayeed, the accused-Appellant Iqbal Ahmad was deeply inflamed and he rushed at Sayeed after whipping out a revolver from the folds of his clothes and after putting a cartridge in it. Sayeed ran into the chhapper of Sabau. Iqbal Ahmad chased him and reached there. The deceased started running around the eastern pillar, on which the chhapper was resting and the Appellant also continued to chase him there. Then the deceased jumped into the lane towards the east of this chhapper. This lane is said to be only two paces wide and his intention apparently was to enter into the house of Sabau which was just across the lane. The Appellant however also jumped behind him and did not give him any opportunity to enter into the house. He fired the fatal shot which hit the deceased on his back. He slumped down and died. The Appellant made his escape good.

Bashir PW 1 who was also injured in the earlier part of the incident rushed to the Thana and lodged the first information report at 7-00 P.M. the same day. The Investigating Officer Lalta Prasad Singh recorded Bashir''s statement and then came to the scene of occurrence where he interrogated Rais Ahmad PW 2, Sabau and Dulare. He sent Bashir for medical examination.

Dr. R.K. Dhawan PW 8 examined the injuries of Bashir at 10 P.M. the same day, vide, injury report Ext. Ka-4. The following injuries were noted:

Swelling of the lower and upper eye lid left side. Black eye was present.

Bruise on the upper lip left half, 2 cm x 1/2 cm obliquely placed, red coloured with diffused swelling present.

Swelling on the lower lip, left, half, red coloured with diffused swelling.

Haematoraa on the scalp occipital parietal region 4 cm x 3 cm over the left half, 9 cms above and medial to the left mastoid process.

All these injuries were caused by some blunt object. In his statement, the doctor agreed with the suggestion that these injuries could have been caused as a result of kicks and fists at 5-00 P.M. on 5-1-71.

On 6-1-1971 the inquest on the dead body was conducted by PW 7 Lalta Prasad Singh, Investigating Officer. The dead body was then sent for post mortem examination to the mortuary which was conducted by Dr. K.K. Khanaa, PW 6 in the District Hospital at 1.40 P.M. on 7-1-1971. The post mortem report is Ext. Ka 10. The doctor found four gun shot wounds on the anterior side of the chest, each wound being 1/4" in diameter on the dead body. They were as follows:

One wound of entry on right side 4" below and medial to the right nipple.

Three wounds of entry on the left side 1/2" below the left nipple and 2" away from the wound No. 1.

There was one wound of exit on the posterior surface on the chest just below the interior angle of the scapula, 1/2" in diameter.

The internal examination revealed anaemia in the membranes of the brain, laceration in an area of 4" in the right lung and multiple lacerations in an area 6" in the left lung. There was one hole in the right lung and three holes in the left lung Pleura has also one hole. Larynx was congested. There were blood cloths below the lungs. The doctor extracted five pellets Ext. 6 from the dead body. In his opinion all these injuries had been caused as a result of gun shot firing and the death could have taken place at about 5.00 or 5.30 P.M. on 5-1-1971. The dead body was putting on a blood stained sweater Ext. 1, lungi Ext. 2, baniyan Ext. 3 and under-wear Ext. 4. All these articles were taken into custody, sealed and sent to the authority concerned. They were ultimately sent to the Chemical Examiner and Serologist and lastly were sent to Medico Legal Expert of the State of U.P.

During investigation Lalta Prasad Singh took blood stained and simple earth from the scene of occurrence. These articles were all sent to the Chemical Examiner, Agra, whose report is Ext. Ka-24 dated 31-7-1971 and has been placed on the record Stains of human blood were found on the clothes Exts. 1 to Ext. 4 and the blood stained earth Ext. 8. It may be mentioned here that immediately after the occurrence, the accused allegedly absconded and therefore, proceedings under Sections 87 and 88 Code of Criminal Procedure had to be taken and his belongings were attached.

It may also be relevant to point out that one of the witnesses of this occurrence namely Kallu, at whose house Bashir PW 1 had gone one day earlier to the date of occurrence, to prepare NANS was examined u/s 512 of the Old Code of Criminal Procedure (which was applicable to this case then) on 23-10-1972. His statement is Ext. Ka-20, and this has now been brought on the record, since his statement was recorded, after the accused had already been declared as an absconder.

After the submission of the charge sheet Ext. Ka-17 on 9-3-1971, the blood stained clothes Exts. 1 to 4, the pellets recovered from the dead-body Ext. 6 and some other articles were sent to the Medico Legal Expert of the State Government Dr. Radha Mohan PW 4, in order to obtain his opinion as regards the fact whether it was a case in which firing was made from front or from back and the report of Dr. Radha Mohan is to the effect that the single wound on the back which Dr. Khanna had mentioned as a wound of exit, was really a wound of entry of mass of pellets which had perforated the lungs, etc. and had then embedded themselves at 5 places inside and had come out through four places from the front portion of the body where they had created wounds of exit, which Dr. Khanna has wrongly mentioned as wounds of entry.

During course of the trial, eight witnesses were examined by the prosecution, and in addition the affidavits etc. of some more persons were placed on the record and the entire formal link evidence was adduced.

The contention of the accused-Appellant was that the whole case was false and he had been implicated out of Ranjish. He had admitted that there was a celebration in connection with khatna ceremony at the house of Kallu (since deceased) on 4-1-1971. But he says that be has no knowledge whether Bashir was there or had prepared NANS. For himself he says that he never asked Bashir to prepare NANS for him and never agreed to pay 8 annas by way of wages the next day. He does not admit the fact of his own absconding and says that all the proceedings in this respect are fake. He has no knowledge whether Kallu''s statement u/s 512 of the Old Code of Criminal Procedure was or was not taken down He claims it to be fabricated. His contention is that deceased Sayeed and Bashir''s younger brother Moharram had abducted a Hindu girl from Ranu Sagar and had brought her to this village. This had given rise to a communal tension and he advised Sayeed and Moharram in the matter which advice was not liked by them. His village was faction ridden. Bashir and other witnesses belonged to the party of Zuber Miyan while Rasheed who is the brother in law of the Appellant belonged to the party of Kallu.

No oral or documentary evidence was adduced in defence.

The site-plan prepared in this case is not disputed and in a way its correctness is proved by the testimony of PW 1 Bashir. Ext. Ka-5 which is the injury report prepared by Dr. R.K. Dhawan with respect to the complainant Bashir, and the post mortem examination report prepared by Dr. K.K. Khanna PW 6 have already been mentioned earlier. Bashir was found having four injuries on his person and obviously they were not self inflicted wounds Similarly Dr. K.K. Khanna has clearly proved that the injuries on the person of Sayeed were all gun shot wounds. It is also well established that the injuries of Bashir PW 1 could have been caused as a result of assault by kicks aud fists and some of them could also have been sustained as a result of fall. The two doctors also positively establish that the injuries of Bashir as well as of the deceased Sayeed could have been caused near about 5 or 5-30 P.M. on 5-1-71. Of course, there is a suggestion to Dr. Khanna that the death of Sayeed might have taken place at about 8 or 9 P.M. on 5-1-1971. But this is a very absured suggestion which has been made, in view of the fact that the first information report in this case was lodged in the Thana at 7 P.M. at a distance of five miles from the scene of occurrence. Naturally, it must have taken sometime to reach the Thana from the scene of occurrence and lodge the report. Hence the suggstion that the occurrence actually took place elsewhere at about 8 P.M. is absolutely non serious attempt to challenge the time and place of occurrence.

It however remains that Sayeed was shot dead and Bashir was assaulted with kicks and fists; and the medical evidence goes a long way to suggest that these incidents could have taken place at about 5.30 P.M. The unshaken testimony of complainant Bashir finds complete corroboration from the first information report. There is no dispute that the first information report was lodged at 7 P.M and this fact has been proved by PW 7 Lalta Singh, and PW 3 Bhagwati Prasad Shukla, constable clerk. The defence suggestion to the contrary has got to be discarded. It is in the statement of the first informant Bashir PW 1 that Sayeed at the time of the occurrence was putting on a sweater (Ext 1) alongwith other clothes which were all stained with blood. The fact of the recovery of these clothes from the dead body is also established from the statement of Dr. K.K. Khanna PW 6. The blood stained earth was taken soon after the occurrence from the place of occurrence and undoubtedly proves that the scene of occurrence is the same as alleged by the prosecution. The Chemical Examiner found blood stains on all these articles. It is thus established that the first part of the occurrence took place near the cattle trough of Nanhu and thereafter in front of the door of the house of Sabua in the lane, murder of Sayeed was committed. His dead body was found at that place and was taken into custody from there. There is no dispute again as regards the fact that a day earlier there was Khatna ceremony at the house of Kallu who is now dead. His statement Ext. Ka-20 is on the record, it was recorded after the accused had already been declared as an absconder. Even the Appellant admits the fact of the Khatna ceremony. There is uncontroverted testimony of Bashir PW 1 that he had prepared Nans at the house of Kallu in connection with that ceremony and that Iqbal Ahmad Appellant had also got some Nans (breads) prepared on a promise of payment of 8 annas as wages the next day. There was absolutely no reason for Bashir to have invented this story, if it was not true. There was no previous enmity between Bashir and the present Appellant. Hence Bashir had no reason to falsely implicate the Appellant in this case, if the occurrence had not actually taken place. His testimony that on the next day he met the Appellant near the cattle trough of Nanhu and when he demanded his wages, Iqbal Ahmad promptly started giving him beating and caused him injuries, cannot be discarded as untrue. He has also sustained injuries which can relate back to the time of the occurrence. There is the testimony of witnesses to support him that his cries attracted them on the scene of occurrence and they found him being beaten by the Appellant.

The testimony of PW 2 Rais Ahmad is also completely credible He is undoubtedly the brother of Saeed who has died in this case. He says that he and Saeed both rushed to the cattle trough of Nanhu where Iqbal Ahmad was delivering blows to Bashir PW 1. It may also be mentioned nere that there was no previous enmity between the Appellant Iqbal Ahmad and Rais Ahmad and Saeed (deceased) according to the prosecution case. However, according to the defence, a Hindu girl had been kidnapped and brought to this village by Bashir''s younger brother Moharram and Saeed, and the Appellant was against the keeping of Hindu girl and hence Bashir, Saeed and Rais Ahmad PW 2 were against him. Even then, it would hardly be any reason to falsely implicate him in a case which took place in broad day light in the month of January. It is absolutely improbable that the real culprits would have been screened completely and innocent persons would have been falsely implicated in this case, for such a trivial enmity, if at all. There is no inconsistency in the statements of the two witnesses and after considering the entire evidence on the record and the circumstances of the case we are in complete agreement with the learned Sessions Judge that the occurrence did take place as is alleged by the prosecution. It may be brought on the record that the brother-in-law of the Appellant is one Rasheed. There is some evidence also on the record that this Rashid had extended threats to the witnesses about three months prior to the date of the evidence in Court. This Rashid was also an accused in a case of murder of one Kallu miyan and according to Bashir PW 1 he is prosecuted off and on for committing dacoities and thefts. The learned Court below has come to the conclusion that from all this evidence, it appears that Rashid is a tough, bully and a bad character and since Iqbal Ahmad is so closely related to him, he must also have felt slighted when Bashir PW 1 demanded a petty sum of 8 annas from his on a public way. This was the reason why he started thrashing Bashir and perhaps in order to show to the people of the village at large that he was also not to be lightly taken in view of his brother-in-law''s reputation. He also tried to teach a lesson to Saeed and so he want to him with loaded revolver and he ultimately tired with it at Saeed, as a result of which Saeed fell down and died in the lane.

The only thing upon which lot of arguments had been advanced before the Court below and which have again been advanced before us, is the postmortem examination report prepared by Dr. K.K. Khanna PW 6 and his opinion. According to him, the single wound on the back of Saeed was a wound of exit, while there were four wounds of entry on the front portion of his body. If this report is correct, then the prosecution story that Saeed was shot at and injured from the back side, will have to be discarded as unreliable and the prosecution evidence as incredible. To meet this difficulty, the prosecution obtained the Expert opinion of the Medico Legal Expert of the U.P. Government. It may be mentioned here that Dr. K.K. Khanna has made a very cursory postmortem examination on the dead body. He never wrote down the nature of the margins of the wounds which he found on the person of Saeed. It is always essential to do so, when the doctor has to come to a conclusion as to which wound is of exit and which wound is of entry. He also did not make any mention in the report about the presence or absence of blackening, tattooing, scorching and singeing. The prosecution story simply is that the firing was made from very close range of hardly a pace. Obviously whichever might be the wound of entry, should have received blackening, tattooing, scorching and singeing. The non mention of these facts also shows that Dr. K.K. Khanna had worked in a very slipshod manner. Sweater Ext. 1 was undoubtedly on the person of the deceased when this occurrence took place. Dr. Radha Mohan PW 4 found on the back of the sweater a wound corresponding to the back wound on the dead body. There was no hole on the sweater in the front side. The five pellets Ext. 6 which were extracted from the dead body by Dr. Khanna were also examined by Dr. Radha Mohan PW 4 Medico Legal Expert and he was of the opinion that since each one of these pellets weighed 56 grains and was 0.33" in the diameter, a pellet of this size would leave behind a wound of exit equivalent to 1/4" in diametre. Dr. Khanna jumped to his opinion that the back wound was a wound of exit on the simple ground that its diameter was 1/2" while the chest wounds were of 1/4" in the diameter. He ignored the fact that from a close shot, the pellets would enter in a mass causing a bigger wound of entry and when they emerge out separately, they will only make smaller wound of exit. Dr. K.K. Khanna appears to be of the view that this can only happen when the shot is a contact shot. According to Modi, a charge of small shot fired very close to, or within a few inches, of the body enters in one mass like a single bullet. Dr. Radha Mohan has taken this opinion into consideration and Dr. Khanna has ignored it.

Considering the entire evidence on the record, which has been very carefully and rightly dealt with by the learned Sessions Judge, we are of the view that it was a case in which firing was made from behind the deceased, and not from front of him and the back wound in this case is the wound of entry, through which nine pellets entered in mass, out of which five remained embedded inside the body and four came out after losing their force and velocity, causing exit wounds on the chest. This fact also finds complete support from the testimony of the eye witnesses of this case. We are, therefore, of the definite opinion that the accused Appellant had given a sound thrashing with fists and kicks to Bashir and was therefore, guilty u/s 323 of the IPC. He had also committed deliberate murder of Sayeed and he has been rightly convicted u/s 302 IPC. The sentences awarded to him are just and proper and we do not feel inclined to interfere with the same.

In the result, we do not find any force in this appeal, which is hereby dismissed.

The Appellant shall surrender and be taken into custody forthwith to serve out his sentence.

His bail bonds and sureties shall be cancelled.