ISMAIL Vs. STATE OF U P

JUDGEMENT

(1.) -The present two appeals are being taken up together and are being disposed of by this single judgment as the two appeals arose out of a single judgment in S.T. No. 243 of 1979 wherein all the four appellants stood convicted for an offence under Section 302, I.P.C. read with Section 34, I.P.C. and were sentenced to undergo imprisonment for life. On presentation of these two appeals, the appellants were released on bail. At the time of hearing, the learned counsel informed that the appellant Majid died during the pendency of the appeal.

(2.) THE prosecution case in Crime No. 187, under Section 302, I.P.C., P. S. Jehanabad, district Fatehpur, was started on an F.I.R. lodged on 26.8.79 at 10.10 a.m. for an incident that had allegedly taken place on the same day at 7.30 a.m. THE report was made by Raj Bahadur Singh wherein all the four appellants were named. It was the prosecution case in the F.I.R. that the complainant, his uncles-Raghubir and Harpal, and his cousin Chhatra Pal had gone together to their respective fields in village Sujawalpur for cutting fodder, and they were engaged in their work in nearby fields. At about 7.30 a.m., the appellants Ismail, Jibrael, Majid and Lajid came there. Ismail held a lathi, Jibrael had a gun, the other two were having tamanchas. THEy went near Raghubir Singh who was busy in his own field of urd and tilli for cutting fodder. Ismail exhorted others to kill Raghubir saying that this man was responsible for the killing of his brother and he should not be spared. On the shout of Ismail, Raghubir got up and tried to run away. Jibrael then shot him from his gun. Raghubir suffered an injury and raised a cry and ran away. THEn Lajid and Majid opened fire on him from their tamanchas and Raghubir received injury and fell down. THEse two persons then came near him and shot him again from their tamanchas and Raghubir died on the spot. On the screams of Raghubir, the complainant, Harpal, Chhatra Pal and one Dayaram Teli, who were in neighbouring fields, shouted at the assailants who threatened them as well and in fear, the witnesses did not chase them further and the assailants fled away eastwards to their village Bhutaiya Khera. In the year 1959, Surat Singh, grandfather of the complainant, and Pratap Singh, uncle of the complainant, had a land dispute with Ismail and others and in an incident over that dispute, Surat Singh and Pratap Singh were killed. Two cross-cases were initiated against the two parties but both the cases ended in acquittal. A year ahead of the present incident, Ibrahim and Rafiq were killed in a police encounter and Ismail and others suspected that Raghubir (the present deceased) and others had got them killed. This was the motive for the present incident as indicated in the F.I.R. It was made by Raj Bahadur Singh and was written by Chhatra Pal Singh.

(3.) P.W. 2 is Harpal Singh. He supported the prosecution story as given in the F.I.R. The fields, where these persons had gone for cutting fodder, were in village Sujawalpur but were near the border of village Bhutaiya Khera. Harpal and Raghubir were at a northern field while Raj Bahadur, Chhatra Pal and Daya Ram were in a field west to that of Raghubir. He described how the accused persons came and how the incident started. According to him, the exhortation was given by Ismail and it was Jibrael who gave the first shot after Raghubir could proceed 4 to 6 steps in his bid to run away. Raghubir screamed and shrieked but went on running when Lajid and Majid shot at him and then Raghubir fell down. Then, Lajid shot near his ear from a close distance and Majid also fired for the second time. Raghubir, on receipt of these injuries, died at the spot. When this witness and others shouted at the assailants, they threatened them as well and fled away towards Bhutaiya Khera. He spoke about, the past incident of 1959 about killing of Surat Singh and Pratap Singh by Ismail and by the father of Lajid and Majid. Even in the year before the incident, Ismail's brother, Ibrahim, was killed in a police encounter and Ismail suspected the hands of Raghubir Singh in this encounter. Cross-examination of Harpal Singh was made in details. It came out in the cross-examination that concerning the death of Pratap Singh and Surat Singh, a cross-case was started against Harpal also. Raghubir and Angad (father of the complainant) were also accused in the cross-case. Both the cases had ended in acquittal. According to this witness, Raghubir was killed at a place about 70 steps away from the western ridge of the field of this witness. His further cross-examination indicates that at the time of murder of Raghubir, this witness was in his own field which ways lying east of Raghubir's land. He further accepted that the places where he was sitting and where Raghubir was sitting were 70 steps apart. He claimed to have indicated the place where he was sitting but the site-plan does not locate this situation. He could not explain why the Investigating Officer had not shown the place from where he had seen the incident. He was confronted with his 161, Cr. P.C. statements. These statements could have been used for the purpose of contradicting this witness subject to the proof thereof through the Investigating Officer. But the investigation officer, however, was asked about three statements of this witness that he had seen the incident from an eastern field and that he had not stated that the deceased ran first towards the south and then turn towards west and that he had not state further that Lajid opened fire near the ear from a close distance. The witness may not, therefore, be contradicted by any other statement than these. It was taken from him in cross-examination that his term of taking water from the canal fell on Saturdays from 2 a.m. upto 6 a.m. However, they had not gone for taking water from the canal on the date of occurrence. His character was sought to be impeached by showing his involvement in criminal cases and criminal acts which he denied. A suggestion was made to him that Raghubir Singh was killed in some dispute over taking water from the canal during night by some unknown person and only due to old enmities, the old enemies were involved.