Yamin alias Aamen, Umar, Jumman and Khunnu vs State

Poonam Srivastav, J.—Heard Sri D.N. Wali, learned Counsel for the appellants and learned A.G.A. for the State.

The instant appeal preferred by the appellants is against their conviction and sentence u/s 147 and 307 I.P.C. read with Section 149 I.P.C. for 18 months and 5 years R.I. respectively. Both the sentences are directed to run concurrently.

Seven accused were sent up for trial in Sessions Trial No. 21/M/78 for the offences under Sections 147, 148, 307, 149, 120B I.P.C. Police Station Babu Purwa, Kanpur Mahanagar. The accused Matloob Alam, Shabbir @ Munna and Salini have been acquitted by the learned Sessions Judge. The appellants have already been acquitted under Sections 148 and 120B I.P.C.

The prosecution case in brief is that Jumman, Yamin, Mohd. Salim and Sabbir alias Munna attempted on the life of Lalloo. informant PW-8 but injuries were received by three persons namely Muneshwar, Abdul Rashid and Molid. Ishaq.

According to the narration in the first information report, the occurrence is alleged to have taken place on 22.1.1976 at 5.30 P.M. and the first information report was registered on the same day at 6.20 P.M. by Lalloo son of Kalloo. Muneshwar son of Budhai Lal used to work for the first informant and was going along with Abdul Rashid son of Mohd. Shafi, Ishaq, Malloo, Niyamat Ulla and Abdul Khaliq son of Abdul Wahid towards Begam Purwa to settle the payment of wages of the labours. At the time and place of occurrence, accused Jumman, his brother Amin, Umar, Khunnu along with several others caused injuries. Malloo, Khaliq and Izahar escaped the assault. The nearby residence reached the place of occurrence after hearing shrieks and noise but the accused managed to escape. It is also alleged that the accused had entered into a conspiracy with Lalloo, Khunnu. Umar and others. The two witnesses namely Mohd. Ishaq and Abdul Rashid are the witnesses of conspiracy. Abdul Rashid is also one of the injured witnesses. The injury reports of three injured Mneshwar, Abdul Rashid and Mohd. Ishaq are Exhibit Kal, Exhibit Ka 2 and Exhibit Ka 3. Mohd. Ishaq was examined as PW-1 Kallu PW-2, Rasool @ Mallu PW-3, Azhar Ali PW-4. Mohd. Sabbir PW-5, Haji Ali Mulla PW-6, Abdul Rashid PW-7, Lallu PW-8. P.N. Bishnoi PW-9. Om Pal Singh PW-10 and Dr. G.K. Gosh PW-11. The injuries of the injured are enumerated below:

Muneshwar Injured.

(i) Multiple holes 2/10" x 2/10" on the right side of right forearm.

(ii) Circular wound 1/4" x 1/4" on the right shoulder.

The depth of these injuries could not be detected and their X-ray was advised.

Abdul Rashid, PW-7.

(i) Circular wound 1/4" x 1/4" on the left side of back 1" away from mid-line.

(ii) Circular wound 1/4" x 1/4" on the left scapular region, Depth of these injuries could also not be detected and their X-ray was advised.

Mohd. Ishag.

(i) Circular wound 1/4" x 1/4" on right shoulder.

(ii) Circular wound 1/2" x 1/2" x 1/4" top of right shoulder. X-ray of this injury also was advised. The doctor was of the opinion that all injuries of the aforesaid injured persons which were fresh could have been caused by some fire arm.

Accused Munna @ Shabbir died before start of the Sessions Trial. Yamin, Khunnu, Jumman and Umar were charge sheeted by the police. They pleaded not guilty. After the trial they have been convicted.

Sri D.N. Wali has placed the evidence and the injury reports as well as statements of the witnesses. The first submission is that the injuries are simple in nature. Though the doctor had advised X-ray but no X-ray was performed. Besides, all the injuries are on non vital part and therefore, there was no intention of causing death. It is thus emphatically argued that the conviction u/s 307 I.P.C. is uncalled for and is liable to be quashed. Learned Counsel has also laid emphasis on the fact that there were three persons alleged to have received injuries. Muneshwar has not been produced by the prosecution and there is no X-ray report as well. So far the other injured Abdul Rashid is concerned, he has been declared hostile. Mohd. Ishaq is the only injured witness who has supported the case of the prosecution. While referring the evidence of Mohd. Ishaq who was examined as PW-1, learned Counsel has pointed out that he has clearly stated that it was the month of January and occurrence has taken place at about 5.30 P.M. The emphasis is on the statement of examination-in-chief by Ishaq where he admits that he had not seen the assailants who had opened fire. Subsequently he stated that he had seen four persons namely the present accused and there were eight persons in all involved in the incident. He has specifically named the four appellants but he was not able to specify the weapons used by each of them. The other assailants were armed with Sariya and Revolver. However, he has expressed his ignorance as to whose fire caused him injury. He has not specified which of the accused caused respective injuries to the injured.

The next submission of the learned Counsel is that of cross examination, the witness has specifically admitted that there was a long standing enmity between the two parties. There were a number of litigations between them. It is also argued that the first informant is an accused in a number of criminal cases. Thus it is a foregone conclusion that the accused and witnesses including the injured witness was on inimical terms. Learned Counsel has also emphasized on the fact that since the story of conspiracy has been disbelieved by the trial judge therefore, the remaining part of the story of assault can not be accepted to be an absolute truth and in absence of any doubt the appellants are entitled to the benefit. While placing the statement of PW-3 Rasool @ Mallu, learned Counsel has argued that he has admitted in his statement that darkness had set in 1-1 1/2 hour before the time of occurrence. It was a January evening. Besides, there was a Jute curtain hanging from a Bamboo shoot. The accused were on the other side of the curtain therefore, in the darkness of January evening without any source of light, no one had seen the occurrence and the appellants have been implicated only on account of long standing enmity. Besides, it is also submitted that there is no X-ray report and one of the injured witness has been withheld by the prosecution and the second has been declared hostile. The one and only injured witness is PW-1 who has not been able to specify the particular injury caused by which of the accused. It is therefore argued that the conviction on the basis of such evidence is not safe. The other co-accused Matloob and Salim have already been acquitted on the same evidence. Munna is the other accused who died before the Sessions Trial commenced.

Learned Counsel has placed the evidence of Dr. G.K. Gosh PW-11 who had admitted that there is no X-ray report on record. Besides, he has not stated that the injuries were dangerous to life and, therefore, the conclusion arrived at by the trial judge that there was any attempt to kill by the assailants is without any basis. The injuries have also not been caused on vital part which could create apprehension in the mind of learned Sessions Judge and therefore, conviction u/s 307 I.P.C. is bad and unsustainable.

Learned A.G.A. appearing on behalf of the State has admitted that there is no supplementary injury report. No X-ray was performed and the injuries which are on record, is the only injury report when the injured were examined initially. No explanation has comeforth by the learned A.G.A. for non production of Muneshwar who is also an injured witness.

After hearing the respective counsels and taking into consideration the evidence on record, so far the hostile witnesses are concerned, Mohd. Sabir PW-5 who was declared hostile was only witness of conspiracy which the learned Sessions Judge has also disbelieved and, therefore, no conviction was awarded u/s 120B I.P.C. The next witness Abdul Rashid PW-7 is incidentally an injured witness, no doubt he has been declared hostile but subsequently after cross examination by the D.G.C., he has specifically stated that he did not support the prosecution case on account of fear and he was threatened by the accused. He clearly stated before the court that he is still shivering because during lunch hours he was extended threat by the accused, however save for his statement there was neither any question from the D.G.C. nor the court. It is difficult to believe or disbelieve this witness. The contradictory stance taken by PW-7 and the fact that he is declared hostile, I am not inclined to place any reliance. Besides, Mohd. Ishaq is also an injured witness who has supported the prosecution case completely. The other witnesses have also proved the prosecution version. No doubt the learned Counsel has pointed out certain discrepancies in the statements of the respective witnesses but such minor discrepancies are not such which can render the evidence completely without any basis. I am in agreement with the submission of the counsel for the appellants that no question was put to the doctor either by the prosecution or by defence whether the injuries were sufficient to cause death or not. However, on bare perusal of the injury reports and also the fact that there is no supplementary injury report, I am of the view that the injuries were simple in nature and it can not be said that there was any intention whatsoever of the accused to kill and, therefore, the conviction u/s 307 I.P.C. is uncalled for and not sustainable. However, the injured witness Mohd. Ishaq has specifically stated participation of the four appellants but the other injured witness Abdul Rashid though declared hostile but has named the accused Umar and Jumman to have assaulted him. He has not named accused appellants Yamin and Khunnu. Matloob has also been acquitted by the Sessions Judge, thus the conviction of Umar and Jumman is liable to be maintained u/s 324 I.P.C. So far the accused Yamin and Khunnu, appellant Nos. 1 and 4 are concerned, they deserve benefit of doubt. It is only one witness who has taken the name of all the accused and the case of the appellant No. 1 Yamin alias Aamen Imami and appellant No. 4 Khunnu stands on a different footing.

In view of this, the order of conviction in respect of appellant No. 1 Yamin alias Aamen and appellant No. 4 Khunnu stands quashed. The prosecution is unable to prove their guilt without any doubt. They are given benefit of doubt. The remaining appellants can not escape the liability of participating in the crime. The appellant No. 2 Umar and appellant No. 3 Jumman have caused injury but it can safely be inferred that there was no intention to kill and therefore conviction u/s 307 I.P.C. is uncalled for. These two appellants are convicted for offence u/s 324 I.P.C. The accused Umar and Jumman, appellant Nos. 2 and 3 were detained in jail initially after the F.I.R. was lodged. Subsequently after their conviction till the appeal was filed they were again in detention for a short period and thereafter non-bailable warrants were issued by this Court during pendency of the appeal. Thus the two appellants have been under detention approximately for a period of more than one and half months. The incident had taken place in the year 1976. More than 30 years have lapsed and in my view the the appellants should not be sent to jail after such a long lapse of time. The sentence u/s 324 I.P.C. for the period already undergone and fine will serve the ends of justice. So far as the appellant No. 1 Yamin alias Aamen and appellant No. 4 Khunnu are acquitted. They are given benefit of doubt and the appellant No. 2 Umar and appellant No. 3 Jumman are convicted u/s 324 I.P.C. The period of sentence is already undergone by them along with fine of Rs. 5,000/- each. In default of payment of fine, further imprisonment for a period of three months.

The appeal stands partly allowed.