SHAMSHUL KANWAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A rioting of grave nature took place in Village Sakhni within the limits of Police Station, Jahangirabad in District Bulandshahr at about 3.30 P.M. on 1-2-1989 in the course of which 11 people died and some others were injured including a police constable who was on bandobust duty. In respect of this occurrence 21 accused were tried for offences punishable under Sections 148, 302/149, 307/149 and 332/149, I. P. C. and Section 25 of the Arms Act. The trial Court acquitted A-9 Asgar, A-19 Munna Baboo, A-20 Jarrar and A-21 Israr and convicted the remaining accused. Out of them six were sentenced to death and the rest to imprisonment for life and also for shorter terms of imprisonment for the others offences. The convicted accused preferred appeals to the High Court and the trial Judge also made a reference for confirmation of death sentence. The State also filed two appeals one being against the acquittal of the four accused and the other appeal was for enhancement of sentence of imprisonment of life of the 11 accused to death. The High Court acquitted A-3 Vilayat Hussain and A-18 Ali and confirmed the death sentence of A-1 Shamshul Kanwar but reduced the sentence of death in respect of other five accused to one of imprisonment for life. With this modification all the appeals filed by the accused as well as the State were disposed of by a common Judgment. In this Court, as against the said Judgment, A-1 Shamshul Kanwar has filed Criminal Appeal No. 887/94, A-10 Rais has filed Criminal Appeal No 888/94 and A-2 Rashidul Zafar and other convicted accused have preferred Criminal Appeal Nos. 889-891/94. Criminal Appeal Nos. 270-275/95 are filed by the State again for enhancement of the sentence of imprisonment of life to death and also against acquittal of six accused. Since these appeals arise out of a common Judgment of the High Court, the same can be disposed of together by us.

(2.) Village Sakhni was faction-ridden. A-1 Shamshul Kanwar was, at the relevant time, the Pradhan of the Village and he led one faction and the other faction was led by P.W. 4 Mohd. Hussain and others. In the year 1981 one Mirja Badar belonging to the party of A-1 was murdered. In that case 12 persons including P. Ws. 1,2 and 4 were tried in a long-drawn trial and were convicted. They remained in jail during the trial and also after conviction except Kallu Beg alias Kallua who was granted bail on some compassionate ground. They filed an appeal in the High Court and also sought bail. In the first instance the bail was refused and later they were granted bail. When they were out of jail they were threatened by A-1 and members of his family. They were not allowed to enter the boundaries of the Village. Therefore P.W. 4 and others left the Village and began to live at Delhi. P.W. 4,' s mother-in law, an old lady, along with her husband went to Delhi to the residence of P.W.4, 10 or 12 days prior to the present occurrence. She was suffering from some mental trouble and also severe asthma. She died on the intervening night of 31-1-1989 and 1-2-1989 at about 9.30 P.M. Before her death she expressed her last wish that her body during the 'janaza' (funeral) should be buried in her family grave-yard in the very Village Sakhni. In accordance with her wish P.W. 4, his father, P.W. 1, P.W. 2 and others about eight persons along with women-folk carried the dead body in a truck and started to Village Sakhni at about 6 A.M. on 1-2-1989. They reached Village Dariyapur on the way at about 8 A.M.P.W. 4 reached the residence of his friend namely Pradhan of Village Dariyapur and took the help of four persons who also followed the party armed with their licensed guns and the party reached Bulandshahr where P.W. 4 and his father met the Labour Minister who was camping there and requested him to provide police assistance as they were apprehending danger to their lives at the hands of A-1 and others. The Minister addressed a letter to the S.H.O., Jahangirabad Police Station. They left Bulandshahr at about 10 A.M. with the truck and reached Jahangirabad Police Station at about 11 A.M. and met the S.H.O. and handed over the letter of the Minister along with an application seeking police help. The S.H.O. sent an escort comprising of an A.S.I., P.W. 20 and two armed constables. All of them left Jahangirabad which is about four kms. away and reached Village Sakhni at about 11.30 A.M and stopped the truck outside the house of the dead old lady. The dead body was taken inside and the 'janaza' (funeral) was prepared according to the rites and from the Village they went to the graveyard. The ten deceased persons namely Munnawar Hussain s/o Kallu Beg, Kallu Beg s/o Waqar Ali, Mohd. Ali s/o Avej Ali, Ashgar s/o Bulaki Hussain Munnawar Hussain s/o Haji Mohd., Azad Ali s/o Barakat Ali, Imdad Hussin s/o Farkat Hussain, Shabir Hussain s/o Haji Mohd., Shakuat Ali s/o Kale Hussain and Farkat Ali s/o Mohd. Hussain were also among them and they participated in the funeral.P.W. 20, A.S.I. who escorted them having noticed that there was tension in the Village, by way of abundant Caution, went to Shamshul Kanwar, Pradhan (A-1) and had a talk with him. It appears that A-1 told him that his brother was killed by the other party and that he cannot do anything. P.W. 20, however, asked him to understand the situation and returned to the place of funeral. He felt that the tension has become more serious and that the police force with him was not sufficient and he asked one of the persons gathered there to inform the Police Station on telephone from Village Alipur to send more force at the grave-yard. The people who had come from Delhi and Dariyapur and some people of the Village along with the police force were there. The dead body was buried according to the customs and when the people were pouring the last earth, A-1 came there with 20 to 22 men armed with rifles, guns, farsas, knives, ballams and chhuries etc. and blocked the area. It is alleged that A-1 said that he would give them a lesson for entering the Village to bury the dead body. Thereupon his younger brother Rashidul Zafar alias Chotta, A-2 exhorted that they have plenty of arms and nobody could go safe. Seeing the seriousness of the situation, A.S.I., P.W. 20 asked again P.W. 4 to send one man immediately to Village Alipur to phone to the Police Station for additional force. In the meantime the additional police party was seen coming from the side of Jahangirabad. Just then A-1 and A-2 fired with their rifles towards the gathering near the grave-yard and their followers also fired. With the firing of A-1 and A-2 two persons. Shabir Hussain deceased No. 1 and his younger brother Munnwar Hussain, deceased No. 2. fell down. Meanwhile people ran helter skelter for saving their lives but the accused went on firing indiscriminately as a result of which deceased No. 3 to deceased No. 8 received injuries and fell down. Some of the accused, however, again assaulted deceased Shaukat Ali and Mohd. Ali with the ballams and farsas. P.W. 3 also was assaulted by the accused Nisar s/o Saklain, Bhura and Jarrar with ballams and farsas. Thereupon A.S.I., P.W. 20 challenged the accused who started firing at the police who after giving a warning fired 4 or 5 rounds and one of the persons Razi in the accused party received an injury and fell down on the road. He was, however, carried by his associates. The police party managed to surround four of the accused namely Nisar s/o Saklain, Nisar alias Baddu s/o Mohd. Hussain, Balloo and Masita alias Ranjha and took them into custody along with their respective blood-stained weapons. At the place of occurrence it was found that out of the persons who participated in the funeral, Master Shabir Hussain, his brother Munnawar Hussain, Imdad Hussain, Munnawar Hussain s/o Kalloo beg. Kalloo Beg. Shaukat Ali, Mohd. Ali, Farkat Ali and Ashgar Abid (9 persons) had already died. Azad Ali. Mohd. Taqi and Firdos Ali were in injured condition and one police constable also was found with an injury. The Village people and the relations of the injured carried them from the place of occurrence for treatment. Out of them Azad Ali, deceased No. 10, died later in the hospital. It is also alleged that four persons who were brought from Dariyapur were confined by the accused near the Sheesham tree and all their guns also were taken away. Razi, one of the persons of the accused party died later. P.W. 4, however, scribed the earliest report, went to the Police Station accompanied by six persons at about 5.30 P.M. and submitted the report. The case was registered and the investigation commenced. Inspector, P.W. 8, reached the scene of occurrence at about 7 P.M. and took the four accused into custody. P.W. 8 seized the weapons that were recovered and also the empty cartridges at the scene of occurrence and prepared the necessary panchnamas and sent all the dead bodies for post-mortem.

(3.) The Doctors, P.Ws. 9, 10, 11 and 13 conducted the post-mortems on the dead bodies and they found fire-arm injuries on many of the deceased persons and also incised injuries on some of them. The accused were arrested on various dates and some weapons were recovered. After completion of the investigation the charge-sheet was laid. The prosecution in support of its case examined 32 witnesses and P.Ws. 1 to 4 and 20 mainly figured as eye-witnesses. Out of them P.Ws. 1 and 3 are injured witnesses. P.W. 6, the Doctor, examined P.W. 1 on 6-2-1989 and found one fire-arm injury on the right leg. On being X-rayed a radio opaque shadow was also found indicating that he received injury from a fire-arm. P.W. 6 also examined P.W. 3 Mohd. Taqi and he found three wounds and injuries Nos. 2 and 3 were such which could have been caused by a fire-arm and X-ray also confirmed the same.