Mehboob Jan and Others vs State of U.P.

B.N. Shukla, J.—This criminal appeal is directed against the judgment and order dated 27.3.1981 passed by II Additional Sessions Judge, Rampur in Session Trial No. 346 of 1979 (Case Crime No. 346/1979, under Sections 302, 302/34 and 307/34 IPC relating to Police Station Suar, District Rampur, whereby convicting appellant Mehboob Jan u/s 302 IPC simplicitor and 307/34 IPC, Afsar Ali and Nabi Jan under Sections 302/34 and 307/34 IPC and sentencing them to undergo imprisonment for life u/s 302 IPC and seven years RI u/s 307/34.

In brief, the prosecution case is that on 23.8.1979 at about 11 A.M. when the complainant Mohammad Nabi along with his son Kalbe Ali, deceased, was weeding his Juar crop and accused Mehboob Jan was ploughing his adjoining field with a tractor then accused Afsar Ali came there and Mehboob Jan got down from the tractor and went at the adjoining field of the complainant Mohammad Nabi and asked that he should join openly his group otherwise he would face dire consequences and on refusal accused Mehboob Jan gave him a slap and thereupon the complainant Mohammad Nabi along with his son Kalbe Ali deceased went his house in the village and thereafter on same day at about 12 O'' Clock in the day when the complainant Mohammad Nabi and his son Kalbe Ali deceased were going on the village pathway by the side of the house of Salamat, accused Mehboob Jan, Afsar Ali and Nabi Jan being armed with guns came nearby the tank under the Pakhar tree and on seeing them when the complainant Mohammad Nabi and his son Kalbe Ali deceased had tried to run away towards the house of Salamat, accused Mehboob Jan fired a shot with his gun which hit Kalbe Ali at his back and he fell down in front of the house of Salamat and that on raising alarm, the village people namely, Salamat, Shahzadey Khan, Sharafat and Akhtar Ali had arrived and that on seeing Kalbe Ali lying on the ground in a pool of blood and the village people have assembled, the assailants went away from there. Thereupon, the injured Kalbe Ali was brought through a bullock cart to Primary Health Centre, Suar but he succumbed to this injuries at the hospital Suar.

The informant Mohammad Nabi got written report (Ex. Ka -1) dictated by Dori Lal and submitted it at Police Station Suar on 23.8.1979 and FIR (Ex. Ka-15) was registered at 4.00 P.M. by Head Moharrir Kishal Lal Sharma (PW-6) and made an entry in the General Diary (Ex. Ka-16).

The investigation of the case was taken up by S.I. Har Saran Pawar (PW-4). He visited the hospital at Suar and conducted inquest on the dead-body of Kalbe Ali. He prepared inquest report (Ex. Ka-2)and relevant papers (Ex. Ka-3 to Ka-6). The dead-body was dispatched for post-mortem through Constable Shishupal Singh and Rameshwar Dayal.

Dr. H.C. Naraula (PW-8) conducted post-mortem on the dead-body of Kalbe Ali on 24.8.1979 at 1.30 P.M. and found the following ante-mortem injuries:

(i) One circular 1 cm. x 1 cm. in diameter at left side back of abdomen 5 cm. lateral to mid line on left side. Margins are lacerated and inverted. Blackening present. The wound is of entry.

(ii) One abraded contusion and swelling present at right upper part of abdomen.

In the internal examination, the doctor found peritoneum torn and lacerated. Chambers of heart were found empty. The doctor has opined that the death was caused due to shock and haemorrhage due to ante-mortem injuries. He prepared post-mortem report (Ex. Ka-17).

The Investigating Officer Har Saran Pawar (PW-4) visited the spot and recorded statement of witnesses and prepared the site-plan (Ex. Ka-8). He recovered the blood stained earth an plain earth from the spot and prepared memo (Ex. Ka-9). Two empty ''ticklee'' and ''ticklee gatta'' were also taken into custody. He prepared recovery memo Ex. Ka-10. On house search of the accused, Afsar Ali, one DBBL licensed gun was recovered and taken into custody and prepared recovery memo (Ex.Ka-11). After conclusion of the investigation he submitted charge-sheet (Ex. Ka-14) against the accused persons.

After committal of the case to the court of sessions, the trial court charged all the accused Mehboob Jan, Afsar Ali and Nabi Jan u/s 302 read with Section 34 of the IPC and all the accused pleaded not guilty and claimed trial.

In order to bring home the charge against the accused persons, the prosecution examined eight witnesses in all. Mohammad Nabi (PW-1) is the informant and an eyewitness. Salamat Khan (PW-2) and Shahzadey (PW-3) are the eyewitnesses. Rest witnesses are formal in nature as referred to here-in-above.

Accused in the statement u/s 313 Cr.P.C. had denied their involvement in the occurrence. He did not adduce documentary and oral evidence. The trial court after scrutinizing the entire evidence has recorded finding of conviction against the accused. Hence the appeal.

We have heard Sri I.M. Khan, learned Counsel for the appellants and Sri A.K. Misra, learned Additional Government Advocate for the State and gone through the record.

During pendency of the appeal, accused Mehboob Jan and Nabi Jan died and appeal abated against them on 4.10.2007. Now the appeal survives against the sole appellant Afsar Ali.

It is submitted by learned Counsel for the appellant that the appellant-accused was not present on the spot and he himself got an FIR registered relating to the occurrence on the same day and time and blood was found in his house. He submitted that accused Mehboob Jan had fired shot which hit Kalbe Ali and there was no intention on the part of the appellant to commit the murder of Kalbe Ali and no injury was caused by appellant Afsar Ali and he has been falsely implicated in this case.

Learned AGA submitted that though it is a day light murder with motive and all the three accused persons were armed with guns and they fired shots at the informant and Kalbe Ali and thereafter Mehboob Jan fired shot at Kalbe Ali due to which Kalbe Ali died.

It is FIR case that on 23.8.1979 at about 11 A.M. the informant was weeding his Juar crop and accused Mehboob Jan was ploughing his adjoining field with a tractor and accused Afsar Ali came there and then Mehboob Jan got down from the tractor and went to the field of informant Mohammad Nabi and asked him to join his party and threatened him to face dire consequences in case of refusal. Even Mehboob Jan slapped the informant. Mohammad Nabi and his son Kalbe Ali went to their house in village and about 12.00 O'' clock, when both were going to village pathway by the side of the house of Salamat, then accused persons appeared with guns near the tank under the Pakhar tree. The informant and his son Kalbe Ali tried to run away towards the house of Salamat after seeing the accused persons, then Mehboob Jan fired with his gun which hit Kalbe Ali at his back. He fell down in front of the house of Salamat.

Dr. H.C. Nirula (PW-8) conducted post-mortem on the dead-body of Kalbe Ali and found one entry wound circular 1 cm x 1 cm in diameter at left side back of abdomen 5 cm lateral to mid line on left side and one abraded contusion and swelling present at right upper part of abdomen. After cutting the swelling portion, gun shot was found present which was recovered from subcutaneous tissues. This injury was caused by Mehboob Jan. The motive is also against this accused.

Mohammad Nabi (PW-1) is informant and maker of the FIR. He has deposed about the motive against Mahboob Jan. He further deposed that accused Mehboob and Nabi Jan are cousin and Afsar Ali is their friend but he had no relationship with them. He has not attributed any motive against Afsar Ali except friendship with co-accused. He has further deposed that the fire arm injury was caused by Mehboob Jan to Kalbe Ali. However, no allegation has been made against Afsar Ali that he caused any injury to any person except his presence on the spot. It has also come in evidence that Mehboob Jan had chased Kalbe Ali and fired shot and rest of the accused did not follow.

Salamat Khan (PW-2) is the eyewitness, who has deposed that Mehboob Jan had fired shot at Kalbe Ali and in cross-examination he has admitted this fact that a case was pending against him in respect of causing injury by fire arm at Nabi Jan and in that case, Afsar Ali''s brother Mohammad Ali and accused Mohammad Jan were witnesses. He belong to Pathan Party. He was cross-examined and has stated that he did not know about rifle but Investigating Officer has recorded his statement u/s 161 Cr.P.C. wherein it is mentioned that Mehboob Jan was armed with rifle. It appears from his statement that Mehboob Jan alone had fired shot at Kalbe Ali and murdered him and accused Afsar Ali and Nabi Jan did not follow and they remained present at the pond.

Shahzadey (PW-3) is also a witness. He has also supported this fact that Mehboob Jan had fired shot at Kalbe Ali but he made no allegation against Afsar Ali that he cause any injury to his person. He is an accused in the case lodged by Afsar Ali and admitted this fact that this case is pending in the court.

From the statements of the eyewitnesses it is clear that Mehboob Jan had fired shot by his gun at Kalbe Ali and accused Afsar Ali and Nabi Jan did not cause any injury to Kalbe Ali or any other person. The presence of Afsar Ali is also doubtful. The Investigating Officer Har Saran Pawar (PW-4)- had admitted that Afsar Ali had also got an FIR lodged in respect of occurrence dated 23.8.1979 at 7.30 P.M. registered u/s 323, 324 IPC but charge-sheet was filed u/s 307 IPC. Even he found blood in the house of Asgar Ali.

Mohammad Nabi (PW-1) himself admitted that Afsar Ali himself has received injury on the day of occurrence at about 12 noon. This injury has not been explained by the prosecution and it is not the case of the prosecution that Afsar Ali had fabricated the injuries and got a false FIR registered.

Since the appeal filed by Mehboob Jan has been abated and there is no allegation against the present appellant Afsar Ali that he had inflicted any injury to Kalbe Ali or any person and his presence on the spot is doubtful because he himself has received injuries and got the FIR lodged against the witnesses and his injury has been admitted by the informant himself and there is no evidence to this effect that accused Afsar Ali had shared any common intention with Nabi Jan and Mehboob in order to commit murder of Kalbe Ali or caused dangerous assault to any other person and even he did not follow Mehboob Jan who had fired shot at Kalbe Ali by moving all alone hence accused Afsar Ali could not be convicted u/s 302 IPC or u/s 307 with aid of Section 34 IPC.

Recapitulating the entire evidence and allegations against Afsar Ali, we are of definite opinion that the appeal of appellant Afsar Ali is liable to be allowed.

The appeal is allowed. The conviction and sentence recorded by the trial court against Afsar Ali is set aside. He is on bail. His bail is cancelled and sureties are discharged.