JUDGMENT
M.C. Jain, J.
1. These three matters are connected with each other having arisen out of the judgment and order dated 30th January 1981, passed by Sri S.N. Lal, the then I Additional Sessions Judge, Azamgarh in Sessions Trial No. 317 of 1979.
2. The appellant of Criminal Appeal No. 230 of 1981 namely, Ikram has been convicted under Section 302 I.P.C. and sentenced to life imprisonment. Aggrieved thereby, he has preferred this appeal.
3. The co-accused Abdul Kalam and Abdul Rashid have been acquitted of the charges under Section 302 and 307 I.P.C, both read with Section 34 I.P.C. and the State has come up in appeal thereagainst through Government Appeal No. 1030 of 1981.
4. Criminal Revision No. 460 of 1981 has been preferred by the complainant of the incident, namely, Abu Saad against the acquittal of the co-accused Abdul Kalam and Abdul Rashid named above.
5. We propose to decide all the three matters through this common judgment.
6. We should also place it on record that the Criminal Revision was filed by the complainant through Sri I.A. Khan, Advocate but none appeared for him at the time of hearing. From the side of the State arguments have been advanced by Mr. R.S. Sengar, AGA whereas the Sri G.S. Chaturvedi, learned Sr. Advocate has argued the represented Criminal Appeal on behalf of Ikram as also on behalf of the accused respondents. Abdul Kalam and Abdul Rashid in Government Appeal. AGA and Sri Chaturvedi have been heard in Criminal Revision too. The record is before us which we have carefully perused.
7. The incident occurred on 5.5.1979 at about 8 P.M. in village Daudpur, Police Station Nizambad, District Azamgarh and the F.I.R. was lodged on 6.0.1979 at 6.15 A.M by PW 3 Abu Saad. One Shamim Ahmad lost his life in the incident and PW 5 Nasim sustained injury. The prosecution case, as unfolded from the F.I.R. and the evidence adduced in the court, shorn of superficialities, may be set forth for proper appreciation. The accused Abdul Kalam and Ikram are brothers being sons of Suleman. The accused Abdul Rashid is the son of Yasin. All of them resided in village Daudpur where the incident occurred. The main door of the house of PW 3 Abu Saad was north faced. He had his Verandah in the north and thereafter his Sahan. At a distance of about 8-9 paces towards north of his Sahan, he had Bardaur (where the cattle are tied and fed) with cattle troughs. There was some vacant land thereafter in the northern side. Ikram and Abdul Kalam had some share in this open land. Ikram, Abdul Kalam and their brother Islam had their house at a distance of about two furlongs from the house of PW 3 Abu Saad. After the vacant land, there was a grove numbered as 188 with total area of 283 Kari but there was no tree in that grove. According to Abu Saad, Ejaz, Niyaz and Imtiyaz sons of Nabi Bux, Nazir and Abdul Samad sons of Abid, Ikram and Kalam accused persons and their brothers Suleman were the owners of this grove land. Shamser and his real brother Abul Samad (grand father of PW 3 Abu Saad) purchased the share of Ejaj Ahmad and others on 6.10.1959 in plot no. 436, area 283 Karl and they came in possession according to their share and mutual convenience, just north to their Bardaur. Ikram, Kalam and their brother Islam were allotted shares towards further north as they wanted to cultivate it. The possession of Abu Saad and his family members in the manner aforesaid was continuing without any interruption. There was a Gali (lane) in the west of the open land and to the west of the Gali the house of Manazarul Haq was situated. Towards west of this land Manazarul Haq made a new Ahata with an opening towards east. To avoid any trouble, Abu Saad, after leaving some land as Gali towards west of his land, made a brick wall upto its plinth. Manazarul Haq did not like raising of wall towards east of his Ahata. Manazarul Haq wanted to purchase the land from Ikram and Kalam. Sometime before the occurrence in question, Ikram and Kalam told Abu Saad that the partition held between him and their ancestors was not acceptable to them and they would take their land according to their share adjacent north to Bardaur (of Abu Saad). Abu Saad was not agreeable for repartition and asked these two accused (Ikram and Abdul Kalam) to get it done through court.
8. On 5.5.1979 right from the morning, construction work was started by Abu Saad. The western wall towards east of Ahata (compound) of Manazarul Haq was firstly constructed The foundation was dug towards northern extremity of the land used by him for tethering cattle and then on that foundation construction of wall was started. Foundation for the eastern wall was also dug and water was filled in it. On account of harvesting season and also on account of Lagan (marriage season), there was paucity of labourers and masons. Therefore, the construction work continued in the night also and Abu Saad made arrangement for petromex in the light of which the work was going on. Kalam-Phupha of Abu Saad with the jeep driven by one Shamim of village Magrawan had come to the house of Abu Saad in connection with the Vidai of his Bua. The uncle of Abu Saad was also to go to some relation and, therefore, he had arranged for an Ambassador Car which was brought to his house by driver PW 5 Nasim. Shamim and Nasim with their respective vehicles were present at the door of Abu Saad at about 8 P.M. in the night of 5.5.1979.
9. Ikram with a half gun, Kalam with a lathi and their associate Abdul Rashid alias Guddar with his licensed gun came there and asked Abu Saad to stop the construction work. Abu Saad declined to oblige them and stated that the construction was going on upon his land. Then, on the exhortation given by Kalam and Rashid that Abu Saad be killed, Ikram aimed his half gun but Shamim came in between Abu Saad and Ikram and the shot opened by Ikram hit him (Shamim). He (Shamim) fell down on the ground. Thereafter, Rashid retreating few paces fired from his gun and the pellet hit PW 5 Nasim. PW 1 Wahid, a close neighbour of Abu Saad and Ayub hearing the shouts came there and saw the incident. The night in question was moonlit and there was sufficient light from the Petromex also. The accused persons were very well seen. All the labourers and masons on the spot left the place out of fear when altercation between Abu Saad and the accused was going on. PW 5 Nasim injured, was also very much frightened and slipped away from the place in that night. The condition of Shamim being precarious, he was laid in the jeep and was taken to Civil Hospital, Azamgarh. On the way to the Hospital, in front of PWD Inspection House in Azamgarh town, Haji Bismillah also met them and boarded the jeep. The injuries of Shamim were examined in the District Hospital, Azamgarh by PW 4 Dr. Kalika Singh on 6.5.1979 at 12.15 A.M. The Doctor found the following injury on the person of Shamim:
1. One gunshot wound 1 cm x 1 cm x bone deep on the left side of head, 1 cm above the left ear. It was oval shaped and margins were irregular and ragged. It was bleeding and scorching and tattooing were present.
He was semi-conscious and the injury was caused by some firearm. It was quite possible that he received the injury in the night of 5.5.1979 at about 8 P.M.
10. X-ray was advised and the injury was kept under observation.
11. In the Hospital, Abu Saad got a written report prepared by Shabbir Ahmad and proceeded with the report and the injury report to Police Station Nizambad and lodged the report there on 6.5.1979 at about 6.15 A.M. A case was registered.
12. The investigation was taken up by PW6 SI Mahendra Nath Tiwari who was present at the Police Station at the time of the lodging of the F.I.R. After recording the statement of Abu Saad at the Police Station, he left for the place of incident. At the spot, he recorded the statement of PW 5 Nasim who was said to have been injured in the incident. He was sent for medical examination.
13. The Investigating Officer prepared site plan etc. and busied himself with the activities related to the investigation of the case.
14. PW 2 Dr. Keshav Prasad examined PW 5 Nasim at State Dispensary Sarai Meer on 6.5.1979 at 11.25 A.M. The following injury was found on his person:
1. Contused wound 1 cm x 7/10 cm, skin deep, margin irregular on the anterior aspect of left hand at the root of left little finger. Clotted blood seen in the injury. The wound dressed with some solution.
15. It was about half day old, simple and caused by blunt object.
16. Since the condition of Shamim was very critical, he was taken to Sir Sunder Lal Hospital, B.H.U., Varanasi where he succumbed to his injuries on 6.5.1979 at about 11.15 A.M. PW 7 SI Mata Bhikh Lal prepared the inquest report of Shamim in Sir Sunder Lal Hospital, Varanasi. The dead body was sent for post mortem after being sealed. Post mortem over the dead body of the deceased was conducted by PW 8 Dr. B.K. Bhargava on 7.5.1979 at 2.30 P.M. The deceased was aged about 35 years. The following ante mortem injuries were found on his person:
1. Gunshot entry wound 3/4 cm x 3/4 cm x bone deep, with hair shaved off around the wound on left side temporal region, 1 cm above the left ear, temporal bone of skull fractured.
Burn hole type 1/2 cm x 1 1/2 cm under the injury mentioned above.
2. Contusion 4 cm x 4 cm around the left eye.
17. The cause of death was shock and haemorrhage as a result of gunshot injury.
18. All the three accused pleaded not guilty and claimed false implication due to enmity. According to the convicted accused Ikram, Bardaur which was claimed by Abu Saad was his Baithak. As per his evidence, in the night in question a dacoity was committed at the house of Abu Saad. Abdul Kalam admitted that accused Abdul Rashid was his neighbour. According to him, Ejaj and Niyaz had no concern with the land in question and there had never been any partition. It was also his case that since Abu Saad wanted to take his Baithak and land for which he was not agreeable, he and his brother had been falsely implicated in the case. Abdul Rashid stated that he had no concern whatsoever with Ikram and Kalam. He denied that he was their neighbour. According to him, the land in question belonged to Ikram. Since he made his house on the land in which Abu Saad sought some share, he was falsely implicated.
19. The prosecution in all examined three eyewitnesses and three Doctors. Others related to investigation of the case or were of formal nature.
20. The eyewitnesses examined were PW 1 Wahid, PW 3 Abu Saad and PW 5 Nasim- taxi driver (injured). PW 3 Abu Saad narrated the prosecution case and the role of each accused in detail as has been set out above. PW I Wahid was his neighbour. According to him, his house was at a distance of 10-12 paces in the north from that of Abu Saad. He had reached the spot on hearing altercation. According to him too, on the exhortation of Kalam and Rashid, Ikram had opened shot from his half gun on Abu Saad, but since Nasim and Shamim had come forward, the shot hit Shamim. Then Abdul Rashid opened fire from his gun hitting Nasim. This, in substance, is the gist of the testimony of PW 3 Abu Saad also as regards the manner of the incident.
21. PW 5 Nasim injured made statement in the same tenor. To explain his presence, he stated that he used to ply an Ambassador Car as taxi and had reached the spot on being called by Shakil who had to go in some relation. He even gave his vehicle no. as MRZ 8063. According to him, Shamim (deceased of this felony) also used to ply a jeep as taxi. He belonged to his village and he had also gone there at the call of Kalam in connection with some Vidai.
22. As per the testimony of three eyewitnesses, the incident occurred as a sequel to the altercation between Abu Saad on the one hand and the accused on the other when construction was going on at the behest of Abu Saad. When Abu Saad did not agree to stop the construction, at the exhortation of Kalam and Rashid, Ikram opened shot which hit Shamim who had come forward to intervene. It was in this way that instead of hitting the target (Abu Saad), the shot hit Shamim. Rashid opened shot which hit PW 5 Nasim. All the witnesses spoke about the light of Petromex on the spot when the incident took place.
23. The argument from the side of the State is that participation of Abdul Rashid and Abdul Kalam in the commission of crime was proved to the hilt by the testimony of three eyewitnesses and their acquittal is wholly unjustified. As for Abdul Rashid, it is also urged that he played potent role also by opening shot injuring PW 5 Nasim. The State supports the conviction of Ikram.
24. On the other hand, Sri Chaturvedi has argued that as to the acquittal of Abdul Kalam and Abdul Rashid, the view taken by the trial Judge is reasonable one warranting no interference by this court in exercise of appellate jurisdiction. For the convicted accused, it is urged that the conviction could not be recorded on the testimony of witnesses examined by the prosecution in as much as, PW 5 Nasim has not even sustained firearm injury. This aspect of the matter, according to him, gave a serious jerk to the entire prosecution edifice. The testimony of PW 3 Abu Saad was castigated as being of an interested person and the presence, of PW 1 Wahid was also doubted.
25. We have carefully scrutinized the evidence on record in the light of the arguments advanced at the Bar. There was no evidence whatsoever that Bardaur claimed by PW 3 Abu Saad belonged to Ikram and his brother. The location of the house and Verandah of PW 3 Abu Saad lent support to his evidence that it belonged to him with which Ikram and his brother had no concern whatsoever. From the evidence adduced by the prosecution, it was fully established that in the night in question the construction work was going on in the light of Petromex. There was no interference whatsoever in the construction work which started in the morning till the incident took place. After altercation, Ikram had aimed shot at Abu Saad but Shamim having come in between, he accidentally received the shot opened by Ikram. PW 2 Dr. Keshav Prasad who initially examined Shamim found that he had received a single gunshot injury. It could have been received in the night in question at about 8 P.M. The post mortem report prepared by PW 8 Dr. B.K. Bhargava also established that Shamim died of a single gunshot injury. There is no manner of doubt that the shot which hit Shamim had been opened by Ikram. The ocular testimony was in complete harmony with medical evidence so far as he was concerned. It was well explained by the prosecution witnesses that Shamim (deceased) happened to be there. He had gone there for taking Kalam (Phupha of Abu Saad) with the jeep in connection with Vidai of his Bua.
26. PW 1 Wahid was a natural witness of the incident having his house close to that of Abu Saad. There was no doubt whatsoever about his presence at the place of incident. Sofiyan-Sala of Shakil (uncle of PW 3 Abu Saad) was married to the daughter of the first wife of Hanif-Bahnoi of PW 1 Wahid but this could not be a ground to reject his testimony. Such remote relationship between PW 3 Abu Saad and PW 1 Wahid was not sufficient to discard the testimony of PW 1 Wahid who withstood the test of cross-examination firmly so far as the shot aimed by Ikram at Abu Saad hitting Shamim was concerned. Of course, PW 3 Abu Saad is the complainant but that is no ground to throw away his testimony. Disinterested (independent) witness is not always true and interested witness always false.
27. As per PW 2 Dr. Keshav Prasad, who examined the injury of Nasim, opined that it had not been caused by any firearm. Instead, it was a blunt object injury. To recapitulate, it was a contused wound on anterior aspect of the left hand at the root of little finger. Even if the testimony of PW 5 Nasim and his presence at the spot is ignored on the premise that he did not receive any firearm injury in the incident as alleged by the prosecution, the testimony of PW 1 Wahid and PW 3 Abu Saad was firm enough, clinchingly establishing the guilt of Ikram as being the shooter of Shamim who died of a single shot.
28. The theory of dacoity having been committed at the house of Abu Saad in the night in question has rightly been termed by the trial Judge to be wholly unfounded. The Investigating Officer did not find any semblance of dacoity at the spot.
29. It was not the Case of the prosecution that Abdul Kalam who allegedly appeared at the spot along with the other accused with lathi, used it. Shamim deceased did not suffer any lathi blow. PW 4 Dr. Kalika Sinh found one injury on his person which was gunshot wound. PW 8 Dr. B.K. Bhargava who conducted autopsy on the dead body of Shamim did find a contusion 4 cm x 4 cm around the left eye. It could be possible by fall on receiving the shot. The injury sustained by PW 5 Nasim was allegedly caused by Abdul Rashid by firearm by shooting from his licensed gun. As discussed above, his injury was not of firearm, but of blunt object. In this view of the matter, the participation of Abdul Rashid in the incident is also rendered doubtful. There was no evidence to this effect either that Abdul Rashid was an associate of Ikram and Abdul Kalam and their association was of such type that he could have been persuaded by these two to resort to firing against Abu Saad. The case of the prosecution that Abdul Rashid had used his gun in the occurrence in question by shooting was not at all established and the trial Judge, in our view, rightly concluded that participation of Abdul Kalam as also of Abdul Rashid in the incident was not free from doubt. We should observe that in appeal against, acquittal, the High Court would not ordinarily interfere with the finding of fact arrived at by the trial court, particularly, when the interference is sought on mere possibility of alternate view in respect of the evidence adduced in the case. In the case at hand, there is not even possibility of an alternate view being taken by this Court so far as the participation of accused Abdul Rashid and Abdul Kalam is concerned.
30. After thoroughly examining the evidence on record and the findings recorded by the trial court, we find that the conclusions arrived at by the learned Sessions Judge are quite apt, justified and reasonable. There is no perversity or misreading of evidence, warranting interference by this Court. The Trial Judge has given cogent and convincing reasons for convicting the accused Ikram under Section 302 I.P.C. and for recording acquittal in respect of other two accused appellants Abdul Kalam and Abdul Rashid.
31. In the net result, Government Appeal No. 1030 of 1981, filed by the State of U.P. against the acquittal of Abdul Kalam and Abdul Rashid, Criminal Appeal No. 230 of 1981 filed by the accused Ikram against his conviction and the Criminal Revision No. 460 of 1981 filed by the complainant against the acquittal of Abdul Kalam and Abdul Rashid, are liable to be dismissed and are, accordingly, dismissed.
32. The accused Ikram is on bail. Chief Judicial Magistrate, Azamgarh, shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against him. Compliance report shall be sent to this Court within two months from the date of receipt of this order.
31. Judgment be certified to the court below immediately.