SYED EJAZ ALI Vs. STATE OF U P

JUDGEMENT

(1.) G. D. Dube, J. This appeal has been preferred against the judgment and order of Second Additional Sessions Judge (Non-Metropolitan Area), Kanpur. The learned Sessions Judge has held the appellant guilty of the offence under Section 302, IPC and sentenced him to imprisonment for life.

(2.) THE appellant was police constable on date of occurrence. One (PW 1) lodged a report on 21-3-1972 at 10. 00 p. m. at police station, Mangalpur, district Kanpur. He alleged that, at about sun-set on that day, he was coming from his field situate in village Juria, Police Station Mangalpur, district Kanpur. When he reached near the house of M-'sri Lal, he heard alarm raised by the sister of Jagdish. He. 'inderjit and Baksulla rushed towards the house of Jagdish. At that place, Ganga Prasad was also present. He saw that two constables were coming out of the house of Jagdish. An exchange of words took place between Jagdish and Constables. Jagdish was scolding the constables as to why they entered in his house without his permission. During this ex change of words, one constable fired towards Jagdish, THEreafter, Jagdish fell down. Both the Constables ran towards Jhinjhak. It was alleged that the shot was fired by the Constable having fair complexion. Jagdish was brought to Jhinjhak Hospital for treatment. THE doctor was not present. THE Compounder gave an injection, but Jagdish died in the Hospital.

(3.) THE post-mortem of the dead body of Jagdish was conducted at 11-10 p. m. on 22-3-1972. He found one fire-arm wound of entry circular and punched out and averted margin, blackening and tattooing present X loading into chest cavity and situated on front of chest just below the mid point of left collar bone. Two fire-arm wounds (entry) in front of left shoulder in an area of 2"x2" measuring X skin and blackening and tattooing present THEre was another fire-arm of wound of exit 3/4" x 3/4" X communi cating with injury No. 1 and situated oft the left side of back " outer to sixt thoraxic vertebrae. THE doctor had opined that the death was caused as a result of shock and haemorrhage caused by injuries. 6 THE prosecution examined Sadhu (PW 1), Ganga Prasad (PW 3), Baksulla (PW 4), Bans Lal (PW 5) and Smt. Mahadevi (PW 7) as eye-witnesses, Dr. N. N. Pandey (PW 8) had conducted the inquest proceedings. Banas Lal (PW 9) son of Mangli Prasad is scribe of the report lodged by Sadhu, Radhey Shyam (PW 3) was Head Moharrir and had prepared Chick report on the report lodged by Mukhtar Ahmad. Dr. S. P. Chaturvedi (PW 6) had con ducted the post-mortem. Ram Pal Singh Yadav (PW 5) was an Ex M. L. A. He had moved application to the Minister of State for Home for directing the investigation by C. I. D. R. Rai (PW 16) is a Ballistic Expert. He had examined the cartridges case deposited by Mukhtar Ahmad at the police station with the test cartridges fired from the musket belonging to the appellant. He found that the cartridges deposited by Mukhtar Ahmad was fired from the gun in posses sion of Ejaz AH appellant. 7. THE appellant admitted in his statement under Section 313, Cr. P. C. that he and Mukhtar Ahmad did go to village Juriya. He stated that, on the application moved by Jagdish Yadav, he had gone to inform Jagdish that the Incharge of the Out-post had called him. When he reached near the culvert of Juria he found Munna, Maqsood, Bari Singh and two or three other persons. When they enquired about the house of Jagdish they informed that Jagdish was a Goonda and a man of bad character. However, they said that they will show him the house of Jagdish, when he and Mukhtar Ahmad reached the house of Jagdish at about sun-set, they found that Jagdish, Inderjit and Baksulla were smoking. On the arrival of the appellant and his companion the persons on the Chabutra of Jagdish tried to run away. THE Constables informed these persons that they should not run away and they had come to give some information. THEreupon, Jagdish exhorted his companions that these Constables have come to arrest him and, therefore, they should be beaten and their weapons snatched and they will themselves go to jail. THE appellant also stated that he had challenged Jagdish that he should not attempt to snatch the gun otherwise he will fire. He stated that as soon as Jagdish started snatching the gun from the shoulder of Mukhtar Ahmad, he had fired. Mukhtar Ahmad had picked his gun. In order to avoid attack of the villagers he and Mukhtar Ahmad ran away from the place of occurrence. On the way, Mukhtar Ahmad wrote a first information report. On this report, he too had made his signature. THEreafter, they lodged report at police station Mangalpur. THE appellant had deposited his fires cartridge, two muskets and twenty-nine live cartridges at the police station. THE other co-accused had also given his statement on the line of the appellant. THE accused had examined Afzal Ahmad alias Munna. 8 THE learned Sessions Judge give benefit of doubt to Mukhtar Ahmad, but held that the appellant was guilty of the offence punishable under Section 302,1. P. C. 9. It has been argued by learned counsel for the appellant that the prosecution story is not believable. THE appellant and his companion Mukhtar Ahmad have given a probable explanation about their presence at the spot. It has also been stated frankly by the appellant as to under what circumstance he had to fire upon the deceased. It was urged that the explanation of the appellant ought to be accepted If the appellant's version was accepted, then no offence is made out because the alleged tiring was dona in order to save Government muskets from being snatched by the deceased and his companions. THE firing was not with an intention to commit murder but to deter the assai lants from snatching the gun. 10. We have heard learned counsel for the State also. THE learned Additional Government Advocate urged that there was blackening and tattoo ing around the injuries of Jagdish. This shows that firing was done from a close range. THE explanation given by the appellant is not acceptable because the version put forward by the prosecution witnesses as well as the defence witness does not corroborate the appellant's version. 11. In this case, the appellant admits that he had fired towards the deceased which caused his death. Thus, as stated by the trial court, the only matter to be decided was whether the prosecution story or the defence story was true. THE learned Sessions Judge has rightly held that, according to the defence, the prosecution witnesses had attacked the appellant and his com panion, Mukhtar Ahmad, with deadly weapons and had also pelted brick-bats. THEse prosecution witnesses were attacking the appellant from a close range. THEn, in all probability, the two Constables should have received injuries, but strangely enough, there was not even a scratch on the body of the appellant or his companion, Mukhtar Ahmad. 12. THE appellant bas not led an evidence to show that they had ac tually been deputed to inform Jagdish that he should bring witnesses in connec tion with his application. Even the application moved by Jagdish has not been brought on record. Raja Singh, Sub-Inspector (PW ), who was head Moharrir at the relevant time, had to admit in his cross-examination that he did not know as to for what purpose the Constables were asked to go to village Juria. A half hearted suggestion was made to Smt. Mahdei that Jagdish was a deserter of army and a warrant had been issued for his arrest. Smt. Mahdei had denied all the suggestion. Panna Lal Chaudhari (PW 11), Sheetal Singh (PW 12), Gopi Shyam Pandey (PW 3) and Dinesh Prasad Agnihotri (PW 4) were per sonnels of the police. Three of them had investigated the case. None of these witnesses have stated the purpose for which the appellant and his companion were deputed for going to village Juria. 13. THE learned Sessions Judge has discussed the evidence of the prose cution witnesses in sufficient detail. THE prosecution witnesses have stated that the quarrel started between Jagdish and Constables when Smt. Mahdevi started shouting and Jagdish and other witnesses saw the two Constables com ing out of the house of Jagdish. Smt. Mahdevi (PW 7) has stated that she is a married woman. When she was milk feeding her child, two Constables entered in her house. She admitted that she had become seriously ill and her mind had gone out of order. All this had happened after the incident. THE witnesses had stood her cross-examination quite well. We do not find any reason to disbelieve her testimony. 14. Sadhu (PW 1) is the maker of the report. A suggestion was made to him also that Jagdish was a deserter from army and warrant of arrest had been issued against him. 15. THE version of Sadhu is corroborated by the statements of Ganga Prasad (PW 2) Baksulla (PW 4) and Bans Lal (PW 5 ). THEy are independent witnesses and there is no reason to disbelieve their testimony. 16. THE defence witness is Afzal Ahmad (DW 1 ). This witness stated in cross-examination that the sister of Jagdish had assaulted the Constables with brick bats. THEreupon, the Constables had retreated back for eight to ten steps. He admitted that none of the Constables had received any brick bat injury. Even in his report, Mukhtar Ahmad has not stated that he or the appellant had-received any injury. 17. For the reasons mentioned above, we find that the learned Sessions Judge has given adequate reasons for believing the prosecution story. On scrutiny, we also find that the explanation given by the appellant does not appeal to reason. He was a Constable. Hence, he could have produced the officer who had allegedly asked him to go to the house of Jagdish to inform him to bring the witnesses. THE copy of the application allegedly moved by Jagdish also could have been brought on record. No such attempt has been made. We find that the lower court has rightly believed the prosecution versions. 18. THE appellant had fired towards the deceased from a close range. THE doctor, who conducted the post-mortem, admitted that the injury was sufficient in ordinary course to cause death. THErefore, the appellant was guilty of the offence punishable under Section 302, I. P. C. THE appellant has rightly been held guilty and sentenced to imprisonment for life under Section 302,1. P. C. 19. In the result, the appeal fails and is dismissed. THE appellant be taken into custody forthwith to serve out the sentence. Appeal dismissed. .