Mushtaq and Ors. vs Kundan Singh

Kim dan Singh, J.—The above named appellants have preferred this appeal against the Judgment and Order dated 3051979 passed by Sri G. L. Tandon, the then IVth Additional Sessions Judge, Moradabad, in S. T. No. 604 of 1978, whereby the appellant Mushtaq has been convicted under Section 148, I.P.C., and sentenced to undergo rigorous imprisonment for 2 years. He has further been convicted under Section 302, I.P.C. and Sec. 307/149, I.P.C., and sentenced to life imprisonment and for 5 years'' R. I., respectively. All other appellants except Mushtaq have been convicted under Section 302/149 and 307/149, I.P.C., and each of them has been sentenced to undergo life imprisonment and 5 years R. I., respectively. Appellants Chhotey, Abrar Husain, Ayyub, Asghar and Shahid have further been convicted under Section 148, I. P. C., and each of them has been sentenced to undergo 2 years'' rigorous imprisonment, while Zafeer, Ra&hid Auas Rafiq, Abdul Hasan, Yusuf, Mohammed and Asad were convicted under Section 147, I.P.C., and sentenced to one year''s rigorous imprisonment each, with a further direction to run all the sentences concurrently.

The prosecution case, in brief is that there was a dispute in respect of a drain in village Khaiya Mafi, police station Didauli, District Moradabad, between the accused on one hand and Bashir Dhobi on the other. The com plainant party took side of Bashir Dhobi in that dispute. The accused persons belong to Ansari community, while the complainant party to Turk. At about 4.30 p.m. Aiwaz was ploughing his filed at a distance of about 3 furlongs from the village Abadi, when Rashid alias Rafiq and Mushtaq reached there and started abusing Aiwaz. On his protest, he was whacked with a danda by Mushtaq. On the outcry raised by Aiwaz, some village people had come and intervened. Thereafter Mushtaq and Rashid alias Rafiq left the field saying that they will see him in the village. On the fateful day i.e. 681978, when the complainant and others were sitting on a knoll of earth, Aiwaz, the nephew of the informant Raghib Husain, came there at about 5.30 p.m. and started narrating about the incident which had taken place at 4.30 p.m. in the field. Meanwhile, all the accused appellants also reached there. At that time appellants Mushtaq, Chhotey, Abrar Husain, Ayyub, Asghar and Shahid were armed with guns, while others were armed with lathis. Mushtaq slated the Turk community and 5aid in a raised voice to finish their progeny. In the meantime Irshad had also come from the field and entered the house of Sabir and started peeping through the dcor. Zafeer exhorted Mushtaq to shoot Irshad. Thereupon Mushtaq fired a shot which hit Irshad, as a result of which he fell down on the ground and died at the spot instaneously. Thereafter the other accused who were armed with guns started firing indiscriminately and Yusuf who was armed with a latin gave blows to Nanhey who also fell down. The witnesses present at the scene of incident screamed and then the accused persons left the venue. Due to firing by the accused persons, Sadat Husain, Ale Hasan and Raghib Husain sustained gun shot injuries, while Nanhey received lathi injuries. Raghib Husain scribed report of the incident and sent it to the police station Didauli along with injured persons, which was lodged at 7.45 p.m. on the same day.

M. S. Negi, SubInspector (PW 5) wrote a Chitthi Majroobi and directed the injured persons to go to P. H. C. Joya for their medical examination. Thereafter he left to the place of incident and reached there at 10.30 p.m. on 681978. There he prepared an inquest report next day in the morning as no proper source of light was available in the night. Thereafter he prepared the siteplan of the place of incident and recorded statements of the witnesses and after completing other necessary formalities., he submitted chargesheet in court against the accusedappellants.

The autopsy on the dead body of Ir&had was conducted by Dr. S. P. Uppal at 4.00 p.m. next day (781978) and he found multiple gun shot wounds of entry on chest, cavity deep, on the left side, face and temple region neck left side, left shoulder region.

The injured persons were examined by Dr. T. K. Jha in the morning on 781978 and he found one lacerated wound on the left side of scalp of Aiwaz. On the person of Ale Hasan one lacerated wound was found on right side of his chest, while on the person of Nanhey only an abrasion .7cm x 2cm on the right upper arm was found. He also found 7 lacerated wounds including a multiple wound on the person of Raghib Husain from head to leg. The Doctor also found 6 lacerated wounds including multiple lacerated wounds from head to thigh on the person of Sadat Husain. Some injuries of Sadat Husain, Ali Hasan and Raghib Husain were kept under observation and were advised Xray. On Xray, their injuries were found to be simple in nature.

Prosecution in support of its case examined 7 witnesses. Out of them, Raghib Husaiu, Aiwaz and Mabboob Husain are eyewitnesses of the incident, while others are formal in nature. The accusedappellants denied the prosecution version and stated that the complainant party sustained injuries during an encounter with the dacoits in the night and they have falsely been implicated in the present case due to enmity. The defence also examined one Nihal Chand, Judicial Assistant II, Collectorate, as DW 1 in order to prove the fact that the special report sent by the police to the District Magistrate, Moradabad, was received on 881978.

The learned trial Judge after having gone through the record found the accusedappellants guilty of the offences punishable under Sections 302, 302/149, 307/149, 147 and 148, I.P.C., and convicted and sentenced them in the manner stated above.

It is a case in which the incident took place in broad day light on 681978 in two phases, i. e. at 4.30 p.m. and 5.30 p.m., in village Khaiya Mafi within police station Didauli, District Moradabad. In the first phase of the incident Aiwaz alone received one injury while in the second phase as many as 5 persons sustained a number of injuries and out of them, Irshad had lost his life.

At the outset the learned counsel for the appellants argued that in the present case a dacoity took place in the night and during the encounter with the dacoits the injured persons and deceased sustained injuries. F.I.R. of the occurrence was lodged some time in the morning on 781978 but it was shown antetimed at 7.45 p.m. on 681978. He also contended that the F.I.R. was not in existence even at the time when the inquest report was prepared, hence the version of the incident as mentioned in the antetimed F.I.R. was untrustworthy.

In support of the submission that the report was antetimed, the learned counsel'' for the appellants pointed out following circumstances:

(i) According to Raghib Husain (PW 1) the injured persons were sent to Medical Hospital the same day at 10.00 p.m. but their injuries were examined next day.

(ii) The Doctor T.K. Jha has belived the statement of complainant that the Hospital was closed and no Doctor was available in the Hospital on 681978 since the Doctor stated that at the relevant time there were two Doctors posted in P.H.C. Joya, where the injured were examined, and any of them could be called from their residence which was hardly 1520 paces away from the Hospital.

(iii) The Doctor has admitted in his statement that in the Mazroobi Chitthi no crime number was mentioned.

(iv) The Investigating Officer had allegedly reached the spot the same day but neither he started investigation nor arrested the accused persons.

(v) On the point of distance of police station from the place of occurrence, the F.I.R. and the Inquest report are at variance.

(vi) The special report was not sent to District Magistrate the s.ime day but on 881978.

We heard learned counsel for the complainant and the Additional Government Advocate. Learned counsel for the complainant argued that there is no material on record to show that the F.I.R. was not lodged at the time alleged by the prosecution. The difference of distance from the place 01'' occurrence to the police station mentioned in the Chick report and Inquest report is no ground to discard the prosecution version and delay in reaching the special report at the residence of District Magistrate, S. P. or Magistrate is also no ground to discard the testimony of eyewitnesses including the injured witnesses. He also relied upon a Supreme Court case Sone Lal and others v. State of U. P. AIR 1978 SC 1142, in which it was held that once the prosecution had shown that regular entries were made in public, document, namely, the general diary registration of the case and forwarding of the special report to the higher authorities and of the return of the person, who had taken the special report, to the police station, the legal presumption would be that the official acts must have been duly performed. On the point of the delay in lodging the F. I. R., he also cited a Supreme Court decision in the case of Zahoor and others v. State of U. P., 1991 CLJ 56. In that case it has been held that the delay in filing the FIR was of no consequence and the offence was proved beyond reasonable doubt against some of the accused persons. He also relied upon a Division Bench case of this Court in the case of Tunda and another v. State of U. P., 1989 ALJ 492, in which it was held that mere fact that there is a discrepancy in the distance from Thana to place of occurrence as given in the F.I.R. and inquest memo will not by itself be sufficient to claim that the F.I.R. should be discarded as antetimed. In most of the cases, the Officer conducting the inquest reports has his own impression about the distance. In some cases he may note down the distance as given in the first information report but in no cases his action in this respect can result in the conclusion that either the inquest memo is fake or the first information report is antetimed, unless there are other circumstances to justify such a conclusion.

We have carefully examined the evidence on record in the light of the contention of the learned counsel for the appellants. We find that Raghlb Husain lodged the report at 7.45 p. m. on 681978. On the basis of that report, the Chick report was prepared by head Muharrir Har Dayal Singh and it was ako signed by Sri M. S. Negi, S.I. The case was registered in G. D. by the same Head Muharrir. The SubInspector stated that he reached the village at 10.30 p.m. in the night but due to nonavailability of proper source of light, the inque6t report could not be prepared and the statements of the witnesses recorded. However, they were orally interrogated in the night itself. We are not prepared to accept the defence version that the Chick report and G. D. were prepared next day in the morning and were antetimed because prior to the F.I.R. of this case a cognizable offence was reported and registered at the police station at 5.45 p.m. on 681978. The nonmention of the case crime and other particulars of the case and also the time when the preparation of the Inquest memo started as well as not arresting of the accused in the same night may be a sheer negligence of the Investigating Officer but for that the prosecution has not to suffer. However, the Investigating Officer Sri M. S. Negi stated that the special report of the ca:3c was sent at 7.05 a. m. next day, i. e. 781978 and he has given a satisfactory explanation for the delay because in the night the Roadways buses were not available. On the basis of mere District Magistrate''s endorsement to J.A. on 881978, it could not be presumed that the special report was not delivered at his residence on 781978 itself. Thus we find no force in the argument of learned counsel for the appellants that the F.I.R. of the present case is antetimed and version mentioned therein is not worthy of reliance.

The next limb of the argument of the learned counsel for the appellants was about the responsibility of individual accused in the crime. He argued that in the first phase the incident had taken place at 4.30 p.m. in the field where Mushtaq gave danda blow to Aiwaz. At that time Rashid alias Rafiq had not exhorted .Mushtaq for assault on Aiwaz. In the second phase of incident, 6 appellants who were armed with lathis have not caused any injuries to any of the injured persons while ail of them are said to have wielded lathis. Therefore, the absence of lathi injuries on the defence side reflect a doubt on the participation of the lathiwalas in the incident and consequently we are unable to place any reliance on the evidence of the ocular witnesses to to extent they have deposed about inflicting lathi injuries on the defence side by the accusedappellants, assigned with lathis. Therefore all the appellants who have been attributed the role of causing injuries with lathis are entitled to their acquittal.

As regards appellants Asghar and Shahid, the learned counsel for the appellants argued that both of them had licenced guns. Most probably they had inflicted injuries to the person of the complainant side with their weapons but the injuries of the injured persons were found to be simple in nature and as such hardly a case under Section 324/149, I.P.C., was made out against them. About Mushtaq he contended that he is said to be armed with a gun and had caused injury to Irshad but there was no intention to kill the deceased and in this way, at the most, a case under Section 304, Part II, was made out against him also.

We have examined the evidence on record thoroughly. The eyewitness account given by Raghib Husain (P.W. 1), Aiwaz (P.W. 2) and Mahboob Husain (P.W. 3) cannot be brushed aside so lightiy only on the ground that six appellants assigned with lathis have been falsely implicated in this crime due to enmity and therefore their evidence about other accused persons should also be discarded. Their evidence is consistent and corroborated on all material points by the medical evidence regarding participation of six appellants who are said to have been armed with lire arms and fired on the person of the deceased and other injured persons. The learned counsel for the appellants could not point out any material inconsistency or discrepancy in the statements of the witnesses about the participation of and firing by the six accused persons who were armed with fiiearms. Their evidence fully proved that Mushtaq fired a shot with his gun at the deceased while he was'' peeping through the door oi'' the house of Sabir. Thereafter all of term fired shot indiscriminately on the other injured persons al 5.30 p. m. on 6878 and the matter was promptly reported to police at 7.45 p. m., the same day. We find the evidence of Raghib Husain (P.W. 1), Aiwaz (P.W. 2) and Mahboob Husain (P.W. 3) in respect of the participation of the appellants, who were armed with guns, credible and worthy o;'' reliance. In respect of the responsibility of the individual accused, the learned counsel for the complainant contended that the accused persons had intended to cause death of the complainant party as Mushtaq at the beginning of the second incident exhorted to finish the whole community of Turks and thereupon the accused persons fired shots on deceased Irshad and other injured persons. He further argued that two of the injured persons sustained gun shot injuries from head to thigh and leg and therefore, it could not be inferred that the appellant had no intention to cause death of the injured persons.

In the light of the evidence on record we have considered the argument of the learned counsel for the parties in respect of the liability of the individual accused in the commission of the crime. It is true that only Nanhey sustained single abrasion ''7 cm X "2 cm on the right upper arm. Dr. S.P. Uppal (P.W. 6), who examined him, stated that the injuiy sustained by Nanhey could not be inflicted by lathi but could be a result of fall. No other injured person sustained lathi injury in the main incident. We are unable to believe the evidence of prosecution witnesses that out of 12 accused persons, six wielded lathis but nobody on the complainant side sustained any lathi injury. Accordingly, we find the six appellants namely, Zafeer, Rashid alais Rafiq, Abdul Hasan, Yusui'', Mohammad Jan and Aaad not guilty of any of the offences charged with.

So far as the other appellants namely, Chhotey, Abrar Husain, Ayyub, Asghar, Shahid and Mustaq are concerned, they fired shots indiscriminately with their guns. Ale Hasan, Sadat Husain and Raghib Husain sustained gun shot injuries. No doubt Raghib Husain and Sadat Husain had sustained gun shot injuries from head to thigh and leg but the Doctor found their injuries as also of Ale Hasan to be simple in nature, which appear to have been caused by small pellets. On a perusal of the injury reports of the injured persons, the five appellants viz. Chhotey, Abrar Husain, Ayyub, Asghar and Shahid did not appear to have caused those injuries with an intention to cause death of any of the injured persons. In our opinion, no charge under Section 302/149 and 307/149, I.P.C., is prove against those five appellants. However, we find them guilty of the offence punishable under Section 324/149 and 148, I.P.C.

On the question of sentence of the above five appellants, the learned counsel for the appellants argued that they may be extended the benefit of the Provisions of the First Offenders Act and be released on Probation. In our opinion, none of them is entitled to the benefit of the Provisions of the First Offendei s Act inasmuch as they fired shots indiscriminately causing injuries to three persons who in all received 14 injuries including multiple lacerated wounds. However, we feel that since their conviction in 1978 they have already suffered a lot of mental agony and now after 15 years it would not be proper to relegate them again behind the bar. In our opinion, the sentence of fine of Rs. 1000/under Section 324/149, I.P.C. and Rs. 500 under Section 148, I.P.C., if imposed upon each of the five appellants would adequately meet the ends of justice and in case of default in payment of fine imposed under Section 324/149, I.P.C. and 148, I.P.C. each of them be directed to undergo a sentence of rigourous imprisonment of nine moths and 6 months R. I., respectivley.

So far as the participation of Mushtaq is concerned, he inflicted lathi injury on the person of Aiwaz during the first phase of incident in the field and he further challenged him to see them in the village. When Aiwaz was narrating the incident to the complainant part on the heap of earth near the houses of Sabir and Shabbir he along with other accused persons reached there and abused the entire Turk community to exterpate their progeny once for all. When Irshad was peeping through the door of the house of Sabir, it was Mushtaq who fired shot which hit him due to which he died then and there. Mushtaq fired shot in the company of other coaccused indiscriminately causing injuries to many persons. Learned counsel for the appellants could not point out any discrepancy or inconsistency in the statements of the witnesses indicating any doubt about the participation of Mushtaq appellant in the incident. Rather the evidence is otherwise and we are fully satisfied that the prosecution has succeeded in bringing home gulit against Mushtaq under Section 302, 324/149 and 148, I.P.C. beyond any reasonable shadow of doubt. Hence his conviction and sentence as awarded by the court below is to be upheld and confirmed.

Consequently, the appeal of Zafeer, Rashid alias Rafiq, Abdul Hasan, Yusuf, Mohammed Jan and Asad succeeds and is hereby allowed. Their conviction and sentence as passed by the court below are set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

The appeal of Chhotey, Abrar Husain, Ayyub, Asghar and Shahid succeeds and is allowed in part. Their conviction and sentneces rendered by the Sessions Judge for oltcnce under Section 302/149, I.P.C. is set aside and they shall stand acquitted of that charge. Their conviction under Section 307/149, I.P.C. is modified and instead they shall stand conviciel under Section 3.24/149, l.P.C. and sentenced to pay a fine of Rs. 1,000 each under this section. In case of default in payment oi" fine by any of them, the defaulter shall undergo rigorous imprisonment for 9 months. Their conviction under Section 148, I.P.C. is maintained but the sentence of imprisonment is set aside and instead they are sentenced to pay a fine of Rs. 500 each under this section. In case of default of payment of fine the defaulter shall undergo further R.I. for six months. The sentences in default of payment of fine shall run consecutively. Out of the fine realised, if any, a sum of Rs. 2,000 shall be given to Raghib Husain and Sadat Husain each and Rs. 1,000 to Ale Hasan. The appellants are permitted to deposit the fine within two months from today.

The appeal of Mushtaq, convicting and sentencing him under Section 302, I.P.C., fails and is hereby dismissed. His conviction and sentence under Section 302, I.P.C. is maintained. However, his conviction under Section 307/149, I.P.C. is altered into one under Section 324/149, I.P.C. and instead of sentence of imprisonment, he is sentenced to a fine of Rs. 1,00J. In case of default in payment of fine, he will further undergo 9 months'' R.I. So far his conviction under Section 148, I.P.C. is concerned, it is affirmed but instead of the sentence of imprisonment, he is sentenced to a fine of Rs. 500 and in case of default in payment of fine, he would further undergo 6 months'' R.I. All his sentences will run concurrently.

The appellant Mushtaq is on bail. He will surrender fortwith to serve out his sentence.

K. Narayan, J.I am in agreement with the judgment prepared by the learned Brother Justice Kundan Singh. However, I would like to add a little to his observationii in the matter of special report, which has been sheetanchor of the argument of the learned counsel for the appellants. As already mentioned by brother Justice Kundan Singh, a judicial Assistant of the oifice of the Collector was examined to show tiiat the endorsement made by the Collector on the special report was of 8878. The question is as to what is the value to be attached to this argument. One can think of some effect of delay in discharge of proper duty upon the case of prosecution, though this aspect of the special report to the District Magistrate is very often put to the witnesses. All efforts made by the learned counsel for the appellant during the argument to find the requirement of it in the Code of Criminal Procedure, failed. The only provision in this behalf is in Section 157(1) or the Code of Criminal Procedure, which directs the Investigating Officer to send a report of the First Information report to a Magistrate empowered to take cognizance of the said offence upon the police report. It may be that same 100 years back, the District Magistrate might have been such an office alone but now the situation is quite different and these reports are sent to various Magistrates according to the distribution oi: territorial jurisdiction in every district. Even this report if it could be said so, has to be sent by the police officer in view of Para 101 of the Police Regulations, which directs that whenever the occurrence of an offence of the nature of murder, rioting etc. is reported, the copies of the report will be sent immediately in red envelops to the Superintendent, District Magistrate, S.D.M. and the Circle Inspector by post or hand, whichever may be quicker method of coveayance. The Regulation itself permits use of post for the purpose and in its application becomes one of nature of action forthwith instead of immediate action, if such reports are sent in usual manner in the next morning, there is nothing uncommon. This is of course in addition what has been said by learned Brother Justice Kundan Singh that the date of endorsement does not mean that the report was received on the next day only. The District Magistrate has several functions to discharge and will not keep awaken at night to receive and note the special reports so sent.