State of U.P. vs Sattar Khan and Others

Onkareshwar Bhatt, J.—State of U.P. has preferred this appeal against the judgment and order dated 28.9.1981, passed by the then IInd Additional Sessions Judge, Budaun, in Sessions Trial No. 19 of 1980. The accused-Respondents, Sattar Khan, Menhdi Khan, Nasrullah Khan and Sarmast Khan were tried under Sections 302 and 302 read with 34, I.P.C. and were acquitted by the impugned order.

We have heard Sri S. K. Paul, learned A.G.A. for the State and Sri P. N. Misra, learned senior advocate, appearing for the accused-Respondents.

In this case, murder of Idris Khan took place on 6.12.1979 at 6.15 p.m. in mohalla Jogipura police station Kotwali district Budaun due to fire arm injury. Accused-Respondent, Sattar Khan is alleged to be armed with gun. The other three Respondents are alleged to be armed with lathis.

The accused-Respondents and the informant, Rashid Khan, P.W. 2, belong to one family. About eleven months earlier to the present occurrence, murder of four brothers of accused, Sattar Khan had taken place. In the above murder case, Idris Khan (deceased of this case) along with his son, Adib Khan and Ghuran Khan and Zaheer Khan were accused. All the above accused were bailed out. The bail was conditional in compliance whereof the deceased, Idris Khan was living in the city of Budaun near the house of Haji Sakhawat Hussain in the phatak (gate) of Chuna Khan. Proceeding for cancellation of their bail was pending.

On the date of occurrence, informant, Rashid Khan, P.W. 2, along with Sabbir Khan, P.W. 3, and Noor Navi Khan, P.W. 4, all residents of village Rithia, went to Budaun city for listening the speech of the then Prime Minister, Sri Charan Singh. After listening the speech, they went to market and thereafter at about 5.30 p.m., they went to the phatak of Chuna Khan, where the deceased was residing. The deceased was not present, therefore, they sat down out-side the phatak and waited on a cot. At about quarter past six, deceased carrying a cycle in his hand came in northern lane. At that very time from the southern side lane, which adjoined a mosque, Respondent, Sattar Khan armed with gun and other three Respondents armed with lathis emerged. At that place, an electric bulb which was in front of the house of Sakhawat Husain and also on the pole was emitting light. The Respondents called the deceased and no sooner he turned behind than Respondent, Sattar Khan fired from his single barrel gun at the deceased due to which he fell down. His cycle also fell down. The informant, Rashid Khan, Sabbir Khan and Noor Navi Khan challenged the accused-Respondents but they were threatened by them. Thereafter they made good their escape through the lane adjoining the mosque. A written report was got prepared by the informant through scribe, Maseen Khan. The informant went to the police station Kotwali and lodged the report at 6.45 p.m. where chik F.I.R. of the case was prepared. Noor Navi Khan and Sabbir Khan remained at the place of occurrence near the deceased. The investigation in the case took place and charge-sheet was submitted against the Respondents.

On the date of occurrence on 6.12.1979, the three eye-witnesses, namely, Rashid Khan, Sabbir Khan and Noor Navi all residents of village Rithia, went to Budaun for listening the speech of the then Prime Minister. The fact that the then Prime Minister came to Budaun on that date is also proved from the statement of Bhagwan Das, D.W. 2, A. K. Burnwal, D.W. 3, and Shashi Ram Singh, D.W. 4. Shashi Ram Singh has stated that the Prime Minister was to deliver his speech at 11.20 a.m. in the ground of Islamia Inter College. He has stated that the arrival of the Prime Minister was delayed for about two hours and his departure was also delayed by two hours. The claim of the three eye-witnesses of the case that they went to Budaun for attending the speech of the then Prime Minister is corroborated from the fact that the Prime Minister did come to Budaun on that date. After the speech was over, they went to market. In the market, they learnt at the shop of Sakhawat that the deceased, Idris Khan, had come. In order to meet the deceased, all the three proceeded towards phatak of Chuna Khan. Since the deceased was not present, they waited for him. The deceased was cousin brother of the informant, Rashid Khan. According to the conditional bail order, the deceased could not come to his village. There was nothing unusual or unnatural if the informant, Rashid Khan, Sabbir Khan and Noor Navi went to phatak of Chuna Khan to meet the deceased.

According to the prosecution case at about 6.15 p.m. the deceased came from northern side where the four accused Respondents came from southern side through the lane adjoining the mosque. The accused are alleged to have called the deceased. On calling the deceased turned and at that very time accused, Sattar Khan fired at the deceased which hit him and he fell down. P.W. 1, Dr. A. K. Malpani conducted the post-mortem examination on the dead body of the deceased on 7.12.1979. He found gun shot wound of entry 2.5 cm. x 2.5 cm. over left side of face, 0.5 cm. below inner angle of left eye. Blackening was present around the wound. Edge of skin was torn, chip of bone present in the wound on probing direction was anterior towards posterior upwards and towards right side. Wound was brain deep. On internal examination, the doctor found hole present in the left axillary bone under ante-mortem injury No. 1 and hole present in the base in region of pituitary fossae. Blood was present in cranial cavity. Brain was found lacerated. Clotted blood was present. Five big pellets were found from cerebral hemisphere of brain. In the skull hole, 2 cm. x 2 cm. was found in the pituitary fossae of face and tikali and corck piece was found in this hole. The hole was found through and through. The prosecution case that the deceased died due to fire arm injury, therefore, finds complete corroboration from the medical evidence. The doctor has stated that the deceased would have died on 6.12.1979 at 6 p.m.

At the time of occurrence, one electric bulb was emitting light in the building of the city post office. The city post office is very close to the place where the deceased was shot at. It has come in the evidence that in front of the house of Sakhawat Hussain also, an electric bulb was emitting light. Three eye-witnesses have spoken about the presence of light and it has also been stated by P.W. 9, M. P. Bhatnagar, Sub-Inspector, that at the place of occurrence, he saw electric light. It has come in evidence that the informant and the accused persons belong to the families of common ancestors. One of the sons of Daud Khan was Gulab Khan. One son of Gulab Khan was Gaffar Khan. Gaffar Khan had five sons, one of them is accused, Sattar Khan. Murder of four brothers of accused, Sattar Khan had taken place about eleven months prior to the occurrence. One of the brothers of Gulab Khan was Ismile Khan and one of his sons is Rashid Khan, informant of the case. Gaffar Khan had two brothers, Sarmast Khan and Nasrullah Khan, who are accused-Respondents of this case. One of the brothers of Sarmast Khan, accused, and Gaffar Khan was Khairu Khan. One of the sons of Khairu Khan is Mehandi Khan, who is also accused in this case. Since the informant, Rashid Khan, is related to all the four accused persons, there would have been no difficulty in their recognition by him at the time of occurrence and at the place where there was electric light. The defence has suggested that occurrence had taken place at some other place. Except the suggestion, there is no material on record to fortify the above suggestion. Blood was recovered at the chabutara of Chuna Khan by the Investigating Officer, M. P. Bhatnagar, P.W. 9. It has come in evidence that blood had also fallen at the place where the deceased fell down on receiving gun shot injuries. However, no blood was found at that place by the Investigating Officer. It has come in evidence that the deceased was placed on a cot and the cot was placed on chabutara from where blood had been recovered. It has come in evidence that after the occurrence 20-25 persons arrived at the place of occurrence. Sound of fire must have attracted the neighbours. The place where the deceased fell down was not cordoned off, therefore, whatever blood which might have fallen down at the place where the deceased fell down would have disappeared when the Investigating Officer arrived at the scene of occurrence at about 8.30 p.m. and made spot inspection on the following day at 8.30 a.m. on 7.12.1979. The Investigating Officer has stated that he collected the blood from chabutara. The Investigating Officer had also recovered one empty cartridge and one Tikali near the chabutara.

The occurrence is alleged to have taken place at 6.15 p.m. on 6.12.1979. The first information report of the case was lodged at police station Kotwali at 6.45 p.m. The distance of the police station from the place of occurrence is two furlongs. It has come in evidence that 10 or 15 minutes after the accused went away, informant, Rashid Khan, dictated the report to Masin Khan, which took another 15 to 20 minutes. Thereafter he went to Kotwali on foot. In view of the above fact, there is no delay in lodging of the first information report. Substratum of the prosecution case finds place in the first information report.

Four brothers of accused-Respondent, Sattar Khan were murdered about eleven months prior to the occurrence in question. The deceased was one of the accused in that case. Accused, Mehandi Khan and Sarmast Khan were prosecution witnesses in the murder case of four brothers of the accused, Sattar Khan. The accused persons had, therefore, motive to commit the crime.

The statement of informant, Rashid Khan, was recorded by the Investigating Officer after he lodged the report on 6.12.1979. The statements of Sabbir Khan, Noor Navi and other two eye-witnesses were recorded on 7.12.1979. The delay of one day in recording the statements of Sabbir Khan and Noor Navi cannot be a factor to discredit their sworn testimony and that circumstance alone cannot be held sufficient for discarding their testimony or holding their presence at the date, time and place of the occurrence doubtful. The finding of trial court to the contrary is not tenable. Dr. A. K. Malpani, P.W. 1, has found blackening around the gun shot wound of the deceased. The trial court has found that the fire should have been made from a very short distance. It has come in evidence that when accused, Sattar Khan fired at the deceased, he was at a distance of four or five steps. P.W. 4, Noor Navi Khan has stated that firing took place from a distance of three or four paces. The trial court calculated this distance to be 9-1/2 feet when the witnesses demonstrated the same by walking. The recovery of gun has not taken place in this case. We do not know whether it was a standard gun or not. Dr. A. K. Malpani, P.W. 9, has stated that firing on the deceased must have been made from a distance of about four feet. However, he has stated that correct opinion can be given by ballistic expert. The presence or absence of blackening in the fire arm injury has been mentioned in Modi''s Jurisprudence which is with regard to standard weapons. Since there is no recovery of gun, those standards which have been mentioned in the text book cannot form basis for appreciation of evidence as has been done by the trial court. The presence of blackening around the wound of the deceased does not take away the value of sworn testimony of three eye-witnesses and it cannot be said that ocular testimony is in conflict with the medical evidence.

It has come in evidence that pillow under the head of deceased was also blood stained. It is contended that the presence of pillow has not been explained by the prosecution. No question in this regard has been asked to any of the witnesses. The three eye-witnesses of the case were waiting for the deceased and they were sitting on a cot. That very cot was used for placing the deceased. That cot was put on the chabutara. Sub-Inspector, Chandra Pal Singh, who prepared the inquest of the dead body of the deceased, found the deceased on a cot over the chabutara. It might be that when the deceased sustained injuries and fell down, some one placed the pillow under the head of the deceased for providing him some comfort since they might not have been sure that the deceased had died. However, since no question has been asked with regard to pillow no capital can be made about it. The conclusion of the trial court that deceased sustained injuries while he was lying on the cot is against the evidence of the eye-witnesses, who have unequivocally stated about the firing of the deceased by accused, Sattar Khan. Non-production of five pellets and Tikali recovered by the doctor by itself is not a circumstances against the prosecution as has been held by the trial court.

The accused-Respondent, Sattar Khan, is said to have been armed with a gun and evidence is categorical that due to his firing from the gun, the deceased sustained injuries and fell down and died. Accused, Sarmast Khan, Nasrullah Khan and Mehandi Khan are alleged to be armed with lathis. The prosecution evidence shows that on being called, the deceased turned when he was shot at. None of the three eye-witnesses could say as to which of the four accused called the deceased. It has come in evidence that three accused armed with lathis made no attempt to cause injury to the deceased. Thus, no overt act has been assigned to three accused having lathis with them. In the aforesaid situation, it cannot be held that the accused-Respondents, Sarmast Khan, Nasrullah Khan and Mehandi Khan had common intention to commit the murder of Idris Khan. Therefore, they cannot be held liable for the murder of Idris Khan with the aid of Section 34, I.P.C.

The evidence against accused-Respondent, Sattar Khan is clinching that it was due to his firing at the date, time and place of occurrence which resulted in homicide of Idris Khan.

In view of the aforesaid discussion, the appeal is partly allowed. The order of acquittal of accused-Respondents, Sarmast Khan, Nasrullah Khan and Mehandi Khan is maintained. Accused-Respondent, Sattar Khan is held guilty u/s 302, I.P.C. and is convicted thereunder and is sentenced to imprisonment for life. He is on bail. He shall be caused to be arrested by the Chief Judicial Magistrate, Budaun forthwith to serve out the sentence awarded to him. The Chief Judicial Magistrate shall report compliance within two months.

Judgment be certified for follow up action.