State of U.P. vs Ismail and Others

Umaesha Chandra, J.—This appeal on behalf of State of Uttar Pradesh is directed against an order of acquittal, dated 20-5-1977, passed by I Additional Sessions Judge, Mathura, in Criminal Sessions Trial No. 286 of 1975, holding that on consideration of the entire evidence, circumstances, improbabilities and infirmities it is established that the incident did not take place in the manner as alleged by the prosecution and finding that opposite parties Ismail son of Haji Manga, Ahmad son of Mamman, Yusuf son of Husain Baksh, Jamil son of Ahmad, Muddi alias Hakimuddin son of Haji Manga and Kallu son of Ratan Lal have not committed the offence punishable under Sections 302/307, IPC read with Section 149, IPC. The learned Additional Sessions Judge further found that the offence u/s 147, IPC and Section 148, IPC was not established against Kallu, Ismail, Ahmad, Yusuf, Jamil and Muddi alias Hakimuddin. Aggrieved, the present appeal has been filed by the State of Uttar Pradesh.

On 26-3-1975 a Truck Operators'' Union was formed in Kosi. Truck owners and commission agents were its members. This union was formed because the truck owners and commission agents suspected that some businessmen of Kosi were indulging in smuggling goods. Now the businessmen of Kosi who were indulging in smuggling began to feel difficulty. Therefore, they threatened the members of this union. Consequently the members approached the Truck Operators Union, Mathura, for help. At this, the union of Mathura opened its branch office at Kosi on 1-5-1975. According to prosecution this enraged those businessmen and on 10-5-1975 they came to the office of the union, and at the shop of complainant Harish Chandra PW 2, and threatened them.

On 10-5-1975 at about 8 or 8.30 P.M. Harish Chandra PW 2 came to know that these businessmen were taking No. 2 goods from Kosi to Delhi in two different trucks. Harish Chandra collected other members of the union and with a view to inform the sales tax check post on U.P. Haryana border, they proceeded from the union''s office at about 10.45 P.M. in two trucks. Complainant Harish Chandra, Shobhraj (deceased) and Ghanshyam were in truck No. DLL 7840 driven by Narottam driver. Jogendra Singh PW 4, Jagdish Prasad PW 5, Nanak Chand (deceased), Rahman, Yunus and Peetam Singh were in another truck No. UPU 5887 driven by Bhagwan Das. Truck No. DLL 7840 was going ahead and it was being followed by truck No. UPU 5887. They were on Kosi-Delhi road. The sales tax check post was about five miles away from Kosi towards Delhi. On the way truck No. HRG 6027 was overtaken. This truck was loaded with hundred bags of Arhar Daal of firm Nathimal Gaya Prasad of Kosi. The prosecution alleges that when truck No. DLL 7840 was overtaking the loaded truck, the complainant flashed his torch and saw that the accused were sitting on the tool box of truck No. HRG 5027 and were armed with revolvers and guns. Just when the complainant overtook the loaded truck, he heard two gun-shot fires. At a distance of about 50 yards another truck No. MPO 2857 had blocked the road by stationing it obliquely on the road. The result was that both the trucks of the complainant''s side stopped and the loaded truck dashed against the complainant''s truck. Immediately thereafter there was firing towards the two trucks of the complainant''s side from truck No. HRG 5027. Shobhraj and Nanak Chand died on the spot while Jogendra Singh PW 2, Rahman and Yunus received gun shot injuries. Nanak Chand died m the truck because of the injuries received by him. Someone shouted from truck No. HRG 5027 which was damaged asking Kallu to back his truck as the truck had gone out of order. The complainant and other members who had concealed themselves in the Daala flashed their torches and saw the five accused sitting on the tool box of loaded truck No. HRG 5027. The head lights of all the trucks were on and according to the prosecution the assailants were recognised in the torch light and also in the light shed by the trucks. As truck No. MPO 2857 driven by Kallu reversed and took the assailants away, the two trucks of the complainant got way and they went to Hodal police outpost The complainant left both these trucks at Hodal and in another truck came to Kosi along with Jagdish Prasad PW 5.

Both Harish Chandra and Jagdish Prasad came to the office of the union at Kosi where Harish Chandra dictated a report Ext. Ka-13. Virendra wrote out the complaint and with this written complaint Harish Chandra came to police station Kosi where it was lodged on 11-5-1975 at 1.05 A. M. On the basis of this written report a case was registered in the general diary, Ext. Ka-15 being its true copy.

An information about the dead bodies of Shobhraj and Nanak Chand and also about the two injured Jogendra Singh and Rahman was received at about 11.40 P.M. on 10-5-1975 at Hodal police outpost (police station Hasanpur, district Gurgaon, Haryana State) from Civil dispensary Hodal. Both the injured were referred to Safdarjang Hospital, New Delhi, after first aid. On this information Badri Prasad PW 8, Assistant Sub Inspector police outpost Hodal along with two constables went to the civil dispensary. He prepared inquest reports of the dead bodies of Nanak Chand and Shobhraj Exts. Ka 19 and 20.

Sri V.S. Tomar PW 15 investigated the case after interrogating the Head Moharrir at the police station. He started for the place of occurrence and from there he went to Hodal and reached there when the inquest reports were being prepared. He interrogated the complainant, inspected the place of occurrence, took blood stained earth Ext. 1 and ordinary earth Ext. 2 from the place of occurrence. Truck No. HRG 5027 which had hundred bags of Arhar Daal was present at the spot, two constables were left for its safety with a direction that the truck be brought to the police station.

Jogendra Singh PW 4 was examined by Dr. S.N. Majumdar at 1.50 A.M. on 11-5-1975. He had multiple small punctured looking pellet wounds on the right shoulder, neck, nape of neck and occipital region, multiple pellet wounds were also found on right arm and fore arm. X-ray was taken by Dr. Y. Singh, vide X-ray plate Ex. Ka-3, report being Ex. Ka-2.

Rahman injured was also examined by Dr. S.N. Majumdar at 1.50 A. M. on 11-5-1975, vide injury report Ex. Ka-4. He had multiple small punctured looking wounds with pellets on scapular region, on nape of neck and right occipital region. X-ray was taken by Dr. Y. Singh of Safdarjang Hospital, New Delhi, vide X-ray plate Ex. Ka-6 and report Ex. Ka-5. Yunus injured was examined at 11.15 A.M. on 27-6-1975 by Dr. Prasad of District Hospital, Mathura, vide Ex. Ka-47. He had four old scars, one on the right eye brow, one on the right forearm, third on the right side of abdomen and the last on right shoulder.

The post-mortem examination of the dead body of Shobhraj was conducted by Dr. B.R. Sood PW 1 of Palwal Dispensary, district Gurgaon, Haryana at 12.30 P.M. on 11-5-1975, vide post-mortem report Ex. Ka-7 which showed that the left side of scalp was completely blown of (frontal left parietal and right parietal bone, occipital, temporal left bones were blown into pieces), membrane and brain were lacerated and were partially missing. According to the Doctor, death was caused due to shock and haemorrhage.

The post-mortem examination on the dead body of Nanak Chand was also conducted by Dr. B.R. Sood at 1.45 P.M. on 11-5-1975, vide post-mortem report Ex. Ka-7. This report shows that the deceased had four wounds of inlet on the right arm and forearm, six wounds on the front of right and left chest, one wound on the right side of neck and 3 on the left side, two wounds in front of left arm and one firearm wound in the epigastric region. The neck was lacerated and blood was present in surrounding tissues. The peritonium and stomach were punctured. In the opinion of the Doctor, death was caused due to shock and haemorrhage.

The investigation of the case continued and the witnesses were interrogated by Sri V.S Tomar on 12-5-1975 and 13-5-1975. On 16-5-1975 hundred bags of Arhar Daal were given in the Supurdagi of Krishna Prasad by memo. Ex. Ka-36 Jogendra Singh PW 4 and Rahman were interrogated in Delhi. Proceedings under Sections 82 and 83 Code of Criminal Procedure were taken against Yusuf, Ismail and Jamil. The firms of Nathimal Gaya Prasad, Kosi, and Manohar Lal and the registers maintained by them, were inspected vide memo Ex. Ka-40 and Ex. Ka-41. Hansraj PW 11, driver of truck No. HRG 5027 was interrogated on 21-6-1975.

The damaged truck No. HRG 5027 was examined by the police mechanic on 20-6-1975, vide report Ex. Ka-31. This report shows that its foot brake and hand brake were correct, but right side head light including grill and other parts were damaged. The engine could not run because of damaged radiater and fan pully. The blood stained articles and clothes were sent to Chemical Examiner. After completing the investigation, a charge-sheet was submitted against the accused.

All the accused denied their participation and asserted their false implication. In support of the prosecution case Harish Chandra PW 2 (in truck No. DLL 7840) and Jogendra Singh PW 4 and Jagdish Prasad PW 5 (both in truck No. UPU 5887) were examined. Prem Chandra and Dharam Singh P Ws 6 and 7 respectively had loaded Arhar Dal in the trucks. The testimony of other witnesses is of formal nature. Hansraj PW 11, driver of the truck, was also examined by the prosecution. The accused produced Head Constable Maharaj Singh DW 1, Lakhan Lal DW 2, Suresh Chandra Bansal DW 3, Munna Lal Sharma DW 4, Jagdish Chandra Sharma DW 5 and Dwarka Prasad Chaturvedi DW 6.

On consideration of this evidence the learned Additional Sessions Judge found (1) that the complainant and other members of their union wanted to monopolise the whole exist of goods from Kosi through their trucks, (2) truck No. HRG 5027 contained No. 1 goods, (3) the prosecution has failed to establish that the accused persons had any motive for commission of the said crime, (4) truck No. MPO 2857 was not present at the spot, (5) the first information report was ante-timed, (6) the medical evidence is wholly inconsistent with the prosecution case, (7) the possibility that the incident took place on the road where blood was found and not in the two trucks, as alleged by the prosecution, cannot be ruled put, (8) the testimony of Hansraj PW 11 was unreliable, and (9) that Kallu was not driving truck No. MPO 2857 and his presence at the time of commission of the offence has not been established. With these findings the Additional Sessions Judge found that the prosecution has failed to establish the charges against the accused who were acquitted.

There is no doubt that truck No. HRG 5027 was used by the assailants to fire at the complainant''s party which had reached there in the two trucks, as alleged by the prosecution. There is also no doubt that the incident took place at Kosi-Delhi road about five miles away from the sales tax check post on the U.P. Haryana border. In this connection two facts are relevant to mention. Firstly that the Investigating Officer found truck No. HRG 5027 on the spot when he reached there the next day. This truck was badly damaged. The report of the police mechanic shows that the radiator and fan belt was damaged which prevented the truck from leaving the place of occurrence. Secondly, Nanak Chand and Shobhraj, both deceased, and injured Jogendra Singh, Rahman and Yunus were brought to police station Hodal on 10-5-1975 at 11.45 P.M, vide entry made in the general diary. Both the trucks belonging to complainant''s side were also brought to Hodal police station at the same time. It is, therefore, proved that the occurrence took place at Kosi-Delhi road as alleged by the prosecution and in the shoot out from truck No. HRG 5027 Nanak Chand and Shobhraj died, and Jogendra Singh, Rahman and Yunus received serious gun shot injuries. But the point for consideration is whether the incident took place as stated by the prosecution.

In support of the prosecution case reliance has been placed on the testimony of Harish Chandra PW 2 who was present in truck No. DLL 7840, and of Jogendra Singh PW 4 and Jagdish Prasad PW 5 who were in truck No. UPU 5887. Before discussing their testimony a few facts, which have important bearing on their evidence, may be mentioned.

In the first place it is established from the evidence that truck No. MPO 2857 had not blocked the road, as stated by the prosecution witnesses. According to the prosecution, Kallu was driving this truck. The learned Additional Sessions Judge has found that presence of Kallu has not been established. It is alleged that when truck No. HRG 5027 was damaged, the assailants cried out and asked Kallu to back truck No. MPO 2857 and when the truck was reversed, the assailants boarded it and ran away. Jagdish Prasad PW 5 has admitted that this part of the prosecution story was not stated by him when he was interrogated by the Magistrate u/s 164, Code of Criminal Procedure. Secondly, according to Prem Chandra PW 6 truck No. HRG 5027 was loaded at 10 or 10.30 P.M. Thereafter this truck reached the mill of Jhamman at about 10.45 P.M. where Prem Chandra saw that Kallu driver was having a tussle with Tara Chand Munim. He was asking Tara Chand to unload his truck. Prem Chandra stated that this truck was unloaded at about 10.45 P.M. with the help of Prem Chandra, Shibban and Kishan. The learned Additional Sessions Judge has rightly concluded that when this truck driven by Kallu was being unloaded at 10.45 P.M. at Kosi then there remains no possibility at all that this truck was present at the spot at the time of the incident. It may also be mentioned that Harish Chandra PW 2 has admitted that he had not mentioned in the first information report or in his statement before the Magistrate u/s 164 Code of Criminal Procedure or in his statement before the Investigating Officer u/s 161 Code of Criminal Procedure that Kallu had reversed truck No. MPO 2857. His explanation that he did not remember it, is hardly satisfactory. Consequently the prosecution evidence does not establish that truck No. MPO 2857 was loaded and had blocked the way thus forcing the complainant''s trucks to stop.

In the first information report it is mentioned that the assailants had fired from truck No. HRG 5027 just when both the trucks of the complainant''s side crossed it. It is also alleged that as their way was blocked by truck No. MPO 2857, the complainant''s trucks had to stop, and truck No. HRG 5027 struck them from behind, and at that time also the assailants fired at the occupants of the two trucks. The first information report further mentions that the assailants were inside truck No. HRG 5027 and they were recognised in the torch light as also in the light shed by the head lights of the four trucks. According to the prosecution the assailants were on the tool box of truck No. HRG 5027. The tool box is a wooden enclosure which remains open facing sky. It is about 2 ft. high wooden enclosure. It is just above the Driver''s seat and is a little raised than the railing of the truck. The prosecution witnesses state that all the assailants were in the tool box. The prosecution witnesses as also the union members, who were going to inform the sales tax octroi post, were in the two trucks as already mentioned above. The site plan prepared by the Investigating Officer would show that these trucks were going in a line one behind the other and truck No. MPO 2857 crossed truck No. HRG 5027 which dashed against truck No. UPU 5887, so truck No. HRG 5027 was towards Kosi side and truck Nos. UPU 5887, DLL 7840 and MPO 2857 were in that order towards Delhi side. Now as both the complainant''s truck crossed truck No. HRG 5027 the head lights of all the three trucks would have been towards Delhi side. The prosecution witnesses who were in these two trucks did not know truck number in which the goods were being transported to Delhi, therefore, they could not have known that truck No. HRG 5027 was carrying goods not forwarded by their union. There was, therefore, no occasion for the occupants of^ both the trucks of the complainant''s side to flash torches when they crossed truck No. HRG 5027 and the assailants sitting on the tool box of truck No. HRG 5027 could not have been visible in the light shed by the head lights. Significantly it is admitted by Harish Chandra that the assailants had not come down from truck No. HRG 5027. They fired while sitting in the tool box of that truck. It may also be mentioned that Jogendra Singh has admitted that he had seen the torch light only once and that too after he had been injured. The above discussion leads to a conclusion that the assailants could not be recognised at torch light and the light shed by the head-lights of the three trucks, which were one behind the other, was not available.

The learned Additional Sessions Judge was also justified in finding that the occurrence had not taken place as suggested by the prosecution and clearly the injured were not inside the truck when the assailants fired at them. Undisputedly the injured were brought to police station Hodal immediately after the occurrence. Harish Chandra PW 2 has admitted that after the trucks were brought to police station Hodal he did not see blood on the ground just below these two trucks. He also states that both these trucks were unloaded. If the members of the Union were going to inform the sales tax octroi post on U.P. Haryana border, it was not necessary for them to take two trucks. They would have boarded only one truck. No explanation has been given why it was felt necessary to take two trucks from Kosi itself. Jagdish Prasad PW 5 has given an half-hearted explanation about it. He states that as it was night and there was no safety, therefore, they took two trucks. But it is significant that none of the members of the union were armed. If they had taken two trucks for their safety, they would have armed themselves. The prosecution story that they were following the two trucks that had left Kosi cannot be believed. Secondly, Bhagwan Das and Jai Prakash were driving the two trucks of the complainant''s side as has been admitted by Jogendra Singh PW 4. The Investigating Officer has admitted that two pages relating to the statements of these two truck drivers Bhagwan Das and Jai Prakash are missing from the case diary. They have not been produced. These drivers would have been relevant witnesses to prove that the union had taken these two trucks to reach the octroi post before the assailants'' truck could cross the border. Thirdly, Badri Prasad who was posted at Hodal outpost was the first to inspect these two trucks. He admits that he had not seen any pellet marks inside the trucks. No piece of the deceased''s head which had been blown off were found in these two trucks. Fourthly, the Investigating Officer has admitted that he inspected these two trucks on 12-6-1975, i.e., about a month after the occurrence. There is no evidence as to where were these trucks after 11-5-1975 when they were brought to police station Hodal till 12-6-1975 when they were first inspected by the Investigating Officer. No reason has been given by the Investigating Officer why the two trucks were not inspected by him before. It has been stated by the Investigating Officer that immediately after a report was lodged, he left for the place of occurrence in a jeep where he was informed that Harish Chandra, deceased, and the injured had left for Hodal. He took his jeep to Model and prepared a Panchayatnama there. Obviously these trucks were at police station Hodal. But when the Investigating Officer had reached there it is strange that both the trucks were not inspected by him It follows therefore that the members of the union had not left Kosi in these two trucks and the assailants had not fired at these two trucks, as suggested by the prosecution.

There is also no motive for the accused to commit the offence. The prosecution witnesses admit that there were many transport companies in Kosi and all these companies merged in the Truck Operators Union established on 26-3-1975. Jogendra Singh PW 4 admits that there were fourteen members of the union and almost all the goods were transported out of Kosi through their union. According to the prosecution some businessmen did not like the formation of this union. They wanted to transport their goods through some other agencies which was not liked by the members of the union. Truck No. HRG 5027 was one such truck in which Arhar Daal was being transported to Delhi. When the union members wanted to inform the octroi post at the border, the driver of truck No. HRG 5027 would have naturally tried to escape unnoticed from the border and there could be no motive for the occupants of truck No. HRG 5027 to fire at the trucks belonging to the union.

It may also be mentioned that accused Ismail, Ahmad and Yusuf had filed a complaint against Sri V.S. Tomar, Investigating Officer, in this case on 26-4-1975 and an enquiry was made by the Circle Officer. The learned Additional Sessions Judge has rightly concluded that Sri V.S. Tomar had motive to falsely implicate the accused in this case.

The prosecution witnesses can be grouped in three classes. Harish Chandra PW 2 occupied truck No. DLL 7840, Jogendra Singh PW 4 and Jagdish Prasad PW 5 occupied truck No. UPU 5887 and Hansraj PW 11 is the driver of truck No. HRG 5027. Harish Chandra, Jogendra Singh and Jagdish Prasad are members of the union. They are, therefore, highly interested witnesses in falsely implicating the accused. There was no light and the members of the union had not taken the two trucks from Kosi. It follows therefore that whoever intercepted truck No. HRG 5027 could not have seen the assailants.

The testimony of Hansraj may be considered separately. It has been argued by learned Counsel for the prosecution that admittedly Hansraj was driver of truck No. HRG 5027 and his statement that the accused had boarded this truck and had fired at the occupants of the two trucks of complainant''s side should be believed. In this connection few facts may be mentioned. Jogendra Singh PW 4 has admitted that Hansraj was known to him from before. Jogendra Singh had stood surety for Hansraj before his truck was released in his favour. Hansraj was interrogated on 11-6-1975 though he has admitted that after the occurrence and before his interrogation he was continuously present at Kosi. There is no reason why the Investigating Officer delayed his interrogation. A few revealing facts may also be mentioned. Truck No. HRG 5027 was owned by Hansraj and before the occurrence Vishnu used to drive it. Hansraj had applied for release of his truck on 27-5-1975. On 21-6-1975 the Investigating Officer noted the order for compliance. Naturally after the order Hansraj must have approached the Investigating Officer but the truck was released on 26-6-1975 and on the same day Hansraj was produced before the Magistrate for his statement u/s 164 Code of Criminal Procedure. The Investigating Officer had not taken proceedings against Hansraj under Sections 82 and 83 Code of Criminal Procedure. These facts indicate that the truck was released in favour of Hansraj only after he agreed to support the prosecution story by his statement u/s 164 Code of Criminal Procedure. It is for this reason that one prosecution witness Jogendra Singh had stood surety for the release of his truck. Hansraj therefore, cannot be said to be an independent witness.

In view of the discussion given above, the prosecution has failed to establish that the incident resulting in the death of Nanak Chand and Shobhraj, and the injuries to Jogendra Singh, Rahman and Yunus, was caused as stated in the first information report. They were rightly acquitted by the learned Additional Sessions Judge.

The appeal has no force and is dismissed and the order of acquittal, dated 20-5-1977, passed by 1st Additional Sessions Judge, Mathura, in Criminal Sessions Trial No. 286 of 1975, is confirmed.