STATE OF U P Vs. ISHTIEQUE ALI

JUDGEMENT

(1.) D. K. Trivedl, J. The present Criminal Appeal has been preferred against the judgment and order dated 16-12-1978 passed by the IVth Additional Sessions Judge, Unnao, acquitting all the 20 respondents from the charges levelled against them. The State, aggrieved by the said judgment and order, filed the present appeal.

(2.) ACCORDING to the prosecution case, the incident took place on 2-11-1975 at about 2. 00 p. m. in village Kursath Police Station Asiwan District Unnao. It is said that there was enmity between Nazir Beg complainant on the one hand and the ac cused persons on the other. It is also al leged that a civil suit was also filed by Smt. Mushta. fi Begum, cousin-sister of Nazir Beg, against Ganga Prasad and others in respect of an old house. It is said that due to this the respondents bore ill-will against Nazir Beg who used to do pairvi on behalf of Smt. Mushtari Begum in all the civil cases. It is the case of the prosecution that on the date of the incident all the respon dents armed with guns, pistols and lathis came to the old house of Nazir Beg and started digging out the earth from that house. It is alleged that Respondent No. 13 Ashfaque Ali and Respondent No. 17 Israr were armed wit'o their licensed guns. Ashraf Ali, Masoom Ali, Faruque Ali. Khaliqrae, Baboo, Masood Ali and Ganga Prasad were armed with pistols and the remaining Respondent Nos. 1 to 11 were alleged to have been armed with lathis. The prosecution further alleged that, P. W. 1 Nazir Beg then went to that house and asked the accused persons not to dig out earth from his house. It is said that two of the accused namely Ishtiaque and Mah-boob Ali exhorted others 'mar Dalo, Jane na Paye' and hearing this Nazir Beg ran away towards the market of Kursath. It is alleged that all the accused persons then chased him and fired their respective arms towards Nazir Beg. Nazir Beg received injuries on his leg and fell down. The other persons also fired their guns causing in juries to other 12 persons. It is further alleged that thereafter Nazir Beg ran away from the spot. In the first Information Report several witnesses including Chasitey, Mohammad Sher, Shri Ram and others were mentioned as witnesses. It is further alleged that, P. W. 1 Nazir Beg thereafter got a written report prepared by one Ramesh Chandra and went to Police Station Asiwan on the same day alongwith, all the injured persons. He lodged the report, Ext. Ka-5, at Police Station Asiwan on the same day at 5. 30 p. m. against 26 persons including the 20 respondents. P. W. 4 Head Constable Rayees Ahmad received the First Information Report and prepa red chik report Ext. Ka-19. After registra tion of the case, all the injured were sent to the District Hospital, Unnao for medical examination and there Dr. A. Akram Medical Officer Kursath Police Station, Asiwan, District Unnao examined them on3-ll- 1975from5. 00p. m. to9. 50a. m. 4. The Doctor found the following injuries on the persons of Nazir Beg: (1) Gun shot wound 2/10" x 2/10" x skin deep below the right thigh 5" above the right frontal fossa circular margins inverted. No blackening, tattooing present. (2) Gun shot wound 2/10" x 2/10" x skin deep circular margins inverted, no blackening or tattooing on the back of right thigh 3", below injury No. 1. (3) Gun shot wound 2/10" x 2/10" x skin deep circular margins inverted, no blackening or tattooing on the back of right leg 2" below the right frontal fossa. 5. ACCORDING to the Doctor the in juries of Nazir Beg were simple, caused by fire-arm and were about one day old. 6. The Doctor examined the injury of Manzoor Ali which is as under: "gun shot wound 1/10" x 1/10" x skin deep on the front of left fore-arm, circular margins inverted 3- 1/2" above the left wrist joint cause by fire-arm. No balckening and tattooing present. " 7. ACCORDING to Dr. A Akram, the injury of Manzoor Ali was caused by gun shot, the same was simple and was about one day old. 8. The following injury was found on the person of Narullah: "gun shot wound 1/10" x 1/10" x skin deep on the front of right palm circular, just below the bone of right middle finger. No blackening or tattooing present. " 9. ACCORDING to the Doctor the injury of Narullah was caused by gun shot, it was simple in nature and was one day old. 10. The Doctor found the following one injuryon the person of Ali Hasan: "gun shot wound 1/10" x 1/10" bone deep on the outer of the left eye ball, 1" away, no blackening and tattooing margins are inverted, circular-no sign of inter-circular injury caused with fire arm. " n 11. ACCORDING to the Doctor the in jury of Ali Hasan was caused by fire-arm, was simple in nature and was one day old. 12. The Doctor found the following injury on the body of Nanha: (1) "gun shot wound VI0" x 1/10" x skin deep on the front of left fore arm 1/2" below the elbow joint. Circular inverted-margins, no blackening and tattooing present. (2) Gun shot wound 1/10" x 1/10" x skin deep on the left side of abdomen circular mar gins inverted caused with burn scab 5" away from the umbilicus-no blackening and tattoo ing present. 13. ACCORDING to the Doctor the in juries of Nanha were caused by fire-arm, were simple in nature and were one day old. 14. Dr. A. Akram medically ex amined Smt. Ganga Devi on the same day at 9. 50 p. m. and prepared injury report Ext. Ka-11 and found the following in juries on her person: (1) Abrasion l/5"x 1/5" on the right side of head, 3-1/4" above the right eye brow, no scab. (2) Gun shot wound 2/10" x 2/10" x skin deep on front of left shoulder 3" below the joint, circular caused with burn scab-no blackening and tattooing present-margins inverted. 15. ACCORDING to the Doctor injury No. 2 to Smt. Ganga Devi was caused by fire-arm and injury No. 1 was caused by friction against blunt object and both in juries were simple and one day old. 16. The Doctor examined Putti Lal on 3-11-1975 at 6. 20 p. m. and prepared injury report Ext. Ka-12. He found the following injury on his body: (3) Gun shot wound 2/10" x 2/10" x bone deep on the lower part of right side of ribs 5" below the right nipple-circular margins in verted-cause with dark burn scab, no blacken ing and tattooing. 17. The Doctor opined that the injury of Putti Lal was caused by firearm, was simple in nature and was one day old. 18. Dr. A. Akram medically examined Chhotey Lal on 3-11-1975 at 6. 10 p. m. and prepared injury report Ext. Ka-13. He found the following injury on his person: "gun shot wound 2/10" x 2/10" x scalp deep on the back of centre head 3" above the occipital bone- circular-no blackening and tat tooing-margins inverted-no superficial shot was felt. " 19. ACCORDING to the Doctor, the in jury of Chhotey Lal was caused fire-arm, simple and was one day old. 20. Dr. A Akram medically examined Chhotai on 3-11-1975 at 6. 00 p. m. and prepared injury report Ext. Ka-14. He found the following injury on his person: "gun shot wound 1/10" x 1/10" scalp deep on the left side of head 4-1/2" above the left ear, margins inverted-not blackening and tattoo ing. " 21. ACCORDING to the Doctor, the in jury of Chhotai was caused by fire-arm, simple and was one day old. 22. Dr. A. Akram Medically ex amined Hori Lai on 3-11 -1975 at 5. 45 p. m. and prepared injury report Ext. Ka-15. He found the following injury on his person: "gun shot wound 1/10" x 1/10" x skin deep on the inner side of right knee joint circular, no blackening and tattooing caused with burning scab. No shots felt superficially around the joint. " 23. ACCORDING to the Doctor, the in jury of Hori Lal was caused by fire-arm, was simple in nature and was about one day old. 24. The Doctor medically examined Badlu on 3-11-1975 at 5. 35 p. m. and prepared injury report Ext. Ka- 16. He found the following injury on his person: "gun shot wound 2/10" x 2/10" x skin deep on the right side of chest, circular margins in verted, no blackening and tattooing, 1/4" below the centre of right collar bone. " 25. ACCORDING to the Doctor, the in jury of Badlu was caused by fire-arm, was simple in nature and was about one day old. 26. The Doctor medically examined Ishrat Khan on 3-11-1975 at 5. 30 p. m. and prepared injury report Ext. Ka-17. He found the following injury on his person: "gun shot wound 2/10" x 2/10" x skin deep on the front of chest Circular margins inverted 4" above the left nipple, no blackening and tattoo ing present. " 27. ACCORDING to the Doctor, the in jury of Ishrat was caused by fire-arm, was simple in nature and was about one day old. 28. After registration of the case, the investigation was handed over tu Shri S. N. Gautam, P. W. 5 who started the investiga tion in this case and on 23-11-1995 recorded, the statement of H. C. Rayees Ahmad, P. W. 4 and thereafter on 25-11-1975 he visited the place of the incident and recorded the statement of the eye-wit nesses including the injured persons. He also prepared Bold site-plans Ext. Ka 21 and Ka-22 and after completing investiga tion he submitted charge-sheet against 20 accused persons who are respondents in this case. 29. The prosecution in support of its case examined five witnesses in all. Out of them, P. W. 1. Nazir Beg, P. W. 2 Ishrat Khan and P. W. 3 Manzoor Ali are the witnesses of fact. P. W. 4 Rayees Ahmad is the Head Constable who proved the General Diary entries and P. W. 5, S. P. , S. N. Gautam con ducted the investigation and submitted charge-sheet. 30. The genuineness of the injury reports and some other documents have already been admitted by the defendants, hence these documents were exhibited and read in evidence. 31. On the other hand the accused persons denied the prosecution case and stated that they have been falsely impli cated in this case due to enmity. They also stated that the complainant and the men of his party were involved in a cross case and in order to create defence, they lodged this report. 32. The learned Additional Sessions Judge, after considering the evidence on record, disbelieved the prosecution case and acquitted the accused persons. 33. We have heard the learned Coun sel for the State as well as Shri J. N. Chaudhari Counsel for the respondents. 34. The main ground of acquittal in the instant case is that the prosecution has implicated 26 persons in this case and it is proved that some of them were innocent. The learned Additional Sessions Judge, pointed out that initially a report was lodged against 26 persons and during the investigation only 20 persons were found involved in this case and, therefore, charge-sheet has been submitted against 20 persons who are respondents in this case. It has also been pointed out by the learned Sessions Judge that incident took place in day time and several independent witnesses were cited in the F. I. R. but not a single witness was examined by the prosecutes to prove its case. Apart from this the learned Additional Sessions Judge has also pointed out that the prosecution witnesses have changed the version of the prosecution and improved the case step by step and at every stage and, therefore, no reliance can be placed on their testimony. The learned Additional Sessions Judge has also pointed out that it is proved that some of them have wrongly been roped in, in this case and it is not possible to come to the conclusion as to who are the persons involved in the case and, therefore, in these circumstances all the respondents are en titled to get the benefit of doubt. No doubt, the reasoning advanced by learned Addi tional Sessions Judge is correct and we cannot say that the approach or the find ings recorded by the learned Additional Sessions Judge are perverse or against the evidence on record. There is no doubt that the prosecution has named initially 26 per sons in this case and out of 26 persons, six persons have already been excluded as no evidence was available against them. Apart from this, it is also strange thing that out of 20 persons, 11 persons came there armed with lathi with an intention to take revenge from the complainant and they had ample opportunity to assault the com plainant but even then they did not par ticipate in the incident nor any blow was given to the complainant or any other per son. In these circumstances it is not pos sible for us to believe the 111 persons came there armed with lathi to take revenge and kill the complainant but they remained standing there and did not cause any injury to the complainant or any body else. The finding of the learned Additional Sessions Judge to this extent, in our opinion, is also correct. 35. As regatds the other nine persons are concerned who were armed with fire arm, it is the case of the prosecution that two persons namely Ashfaque Ali and Israr were armed with their licenced guns and the remaining seven persons were armed with country made pistols. It is also admitted by the witnesses that the injury of Nazir Beg, P. W. 1 was caused by fire of Ashfaque Ali and all the other injured received injuries by the fire of Israr. There is nothing on the record to show that these accused persons had any common object to beat any of these persons. ACCORDING to the prosecution case, no overt act has been assigned to these persons except it is al leged that Ishtiaque Ali as well as Mahboob Ali instigated the accused to kill the complainant. It is alleged that these two persons instigated the other accused per sons and exhorted to kill the complainant. However, it is also admitted by the com plainant himself that he fell down after receiving the first shot and the accused persons were standing just 10 paces away from him but inspite of this no one tried to assault the complainant and this fact itself shows that there is no common object to kill the injured Nazir Beg or to cause any fatal injury to him. If these persons came there armed with the weapons with the common object to kill the complainant then they must have assaulted him special ly when the complainant himself stated that he fell down on. the ground just near the accused persons. The fact that the com plainant was not assaulted by any of the other persons, itself falsify the prosecution case that these persons came there armed with weapons to kill the complainant. In these circumstances, in our opinion, the learned Additional Sessions Judge com mitted no illegality in acquitting the respondent Nos. 1 to 11 who were armed with Lathis. 36. The above mentioned facts also make theory of investigation to kill the complainant, become,? doubtful and it is not possible to believe the said story of investigation by Ishtiaque Ali and Mahboob Ali. 37. The other seven accused persons except Ashfaque Ali and Israr were alleged to be arm with pistols. It is also admitted by the prosecution witnesses that these per sons chased and fired but did not cause any injury to any of the injured. It is the definite case of the prosecution that other two persons namely Ashfaque Ali and Israr who were armed with licenced guns fired their guns and caused injuries to all the injured persons. As pointed out above, it is not possible to believe that these persons came there armed with fire-arms; but did not cause any injury to the complainant or any other person. P. W. 3, Manzoor Ali, in his examination-in-chief stated that no one received any injury from the Katta. This itself shows that the persons who were armed with pistols did not cause any injury to any of the injured and in these cir cumstances it is not possible to believe that these persons also came there armed with fire-arms to kill the complainant. In view of the facts stated above, in our opinion, the finding of acquittal recorded by the learned Additional Sessions Judge against the 18 respondents cannot; be said to be perverse and, therefore, the same cannot be set aside. ACCORDINGly we confirm the acquittal of the above mentioned 18 respondents. 38. As regards the case of Ashfaque Ali and Israr is concerned, the same stands on different footings. It is always the duty of the Court while considering the case to separate the grain from the chaff and with this object in mind, the Court can decide as to whether the prosecution case as a whole is unbelievable or proved against some of the accused. No doubt all the three injured witnesses have named all these accused persons but they also definitely stated that the injuries were caused by two of the respondents namely Ashfaque Ali and Israr. The statements of all the injured witnesses find corroboration from the medical evidence also and in these cir cumstances, in our opinion the learned Additional Sessions Judge committed an error in giving benefit of doubt to these two respondents also whose presence on the spot cannot be doubted. The incident took place in day time and both these persons were armed with their licensed guns. It is also stated by the witnesses consistently that these two persons caused injuries to 13 persons. As pointed out above the statements of these three in jured find support from the medical evidence and, the re is no ground to dis believe these witnesses against these two persons who caused injuries to the injured. If the Court comes to the conclusion that some of the accused might have been roped in, in this case, by the witnesses then in order to eliminate the chances of false implication of the innocent persons alongwith guilty persons, it would be bet ter, in our opinion, to convict only those to whom overt act has been assigned and the same overt act finds corroboration from the other evidence. As pointed out above the overt act has been assigned to these two respondents and the statements of the in jured witnesses are consistent without any shade of inconsistency and, therefore, in our opinion, the presence of these two respondents on the spot at the time of the incident, cannot be ruled out and these persons cannot be acquitted on the ground that the other 18 persons have been ex tended the benefit of doubt. Analysing the evidence of three injured eye-witnesses, we are of the opinion that it brings home the specific overt act to two of the respon dents namely Ashfaque Ali and Israr al leged to be armed with licensed guns. 39. Now the next question is as to what offence has been committed by these two respondents. It is not disputed that all the injuries of all the injured are simple in nature. As pointed out above, it cannot be said that persons came there to kill the complainant because even according to the prosecution case, P. W. 1 Nazir Beg fell down on the ground on receipt of first gunshot injury and he remained lying there for about five minutes. He also admits that he was lying on the ground just at a dis tance of 10 to 15 paces but inspite of this no one tried to assault or cause any injury to him. The relevant portion of his statement is: "girney Par Mere Pass Mulziman Mensey Koi Nahi Aaya, Sabhi 7- 10- Qadam Key Fasley Par Kharey Rahey. Main Garib 5 minute Wahan Pada Raha. " This state ment clearly shows that the accused per sons who were there had no intention to kill the injured. They had ample oppor tunity but even then they did not assault the complainant when he was lying on the ground. In these circumstances and keep ing in mind the nature of injuries, in our opinion, both these accused- respondents are liable to be convicted on the basis of their overt act. Both of them caused simple injuries by their fire-arms and there was no intention to kill, therefore, their case falls under Section 324 I. P. C. In these cir cumstances both these persons are held guilty under S. 324 I. P. C. and, therefore, they are convicted under Section 324 I. P. C. 40. As regards the question of sen tence is concerned, the learned Counsel for the respondents pointed out that the incident took place m the year 1975 and the respondents were acquitted by the learned Additional Sessions Judge in 1978 and since then they are living peacefully in the village and, therefore, now it will not be proper to send these two persons again to Jail. The learned Counsel for the respondents further submitted that they may be sentenced to the period already undergone and further some fine may be imposed. We find force in this contention and looking into the fact that the incident took place m the year 1975, all the accused persons were acquitted in the year 1978 and since then they are living in the village peacefully, in our opinion, it will be proper and in the interest of justice also to award them the sentence to the period already undergone and a fine of Rs. 2000 (Rupees two thousand) to each of the two respondents namely Ashfaque Ali and Israr under Section 324 I. P. C. The State appeal against all the respondents except Ashfaque Ali and Israr is hereby dismissed. The State appeal of Asnfaque Ali and Israr is allowed. Both the respondents are convicted under Section 324 I. P. C. and sentenced to imprisonment already undergone and pay a fine of Rs. 2,000 each. Both these respondents are directed to deposit the same within three months from today. If they failed to deposit the fine, they would serve out the sentence of six months. Appeal dismissed. .