Asif and Others vs State of U.P.

1.This criminal appeal has been filed by the Appellant--Asif, Sabir, Latafat and Quddus--against the judgment and order dated 20.2.1982 passed by Sessions Judge, Shahjahanpur, in S.T. No. 482 of 1981, convicting and sentencing the Appellants u/s 302, I.P.C. read with Section 34 I.P.C. to life imprisonment.

Since the Appellants, Latafat and Quddus, have died and there is a report of the C.J.M., Shahjahanpur, after making due enquiry to this effect, the appeal on behalf of these deceased Appellants abates. Now only the appeal on behalf of the Appellants, Asif and Sabir, survives and is being disposed of by this judgment.

Briefly, the prosecution case was that at about 8 or 8.30 p.m. at the thresher of the Appellant Sabir, which was to the north-east of village Iknaura, Ram Autar, the younger brother of the informant, and Ram Kishan and his cousin brother Chet Ram were present who were getting their barley threshed. One Chhotey Kisan was standing nearby who had brought some harvested wheat for threshing. The Appellant, Asif, younger brother of Appellant Sabir, was present at the thresher. At that time, Chhotey Kisan accused Ram Autar and Chet Ram came for getting his wheat threshed alongwith their barely. This led to a quarrel and grappling between Chet Ram and Chhotey Kisan. When Asif objected to their quarrelling at his thresher, Chet Ram told him that that was a matter between Chhotey Kisan and himself and he had no right to intervene. Thereupon Asif also began grappling with Chet Ram who pushed Asif aside, causing him to fall down. Asif warned him that he would see them on the same day. After that all the persons went home. At about 10 p.m. Asif armed with a double-barrelled gun, Sabir armed with a country-made pistol and Latafat armed with a kanta and Quddus armed with a lathi arrived at the door of the informant. The deceased Chhattar, father of the informant, was about to have his meal when Sabir came to their door and shouted that they should come out. Chhattar came out with his lathi and protested against the abuses by the accused persons. Soon thereafter, he was followed by the informant Ram Kishun, Ram Autar and his cousin sister Buddho and Chet Ram, who were carrying torches. At that time Chhattar was assaulted with lathi and kanta. Sabir cried out that his life should not be spared. Then Chhattar ran in the eastern direction but was surrounded by the accused persons near the house of Ballan Gaddi. There all the four accused persons cried out as to what they were waiting for and that he should be killed, otherwise he would run away. At that moment Chhattar turned around with his lathi. Then Asif fired with his gun which struck Chhattar on his chest and hands and the deceased fell at the door of Ballan Gaddi and died immediately. The accused decamped in the eastern direction after assaulting the deceased. The witnesses saw this incident in the light of the moon and the torches.

Ram Kishun lodged the report of this incident (Ext. Ka-1) at P. S. Kanth at I a.m. in the night of 17/18.5.1981. Head Moharrir Rafiuddin Siddiqui prepared the check report (Ext. Ka-3) and made the relevant G.D. entries.

After registration of the crime, S.I., Raghu Singh (P.W. 5) commenced the investigation of the case. He left for the place of incident at 2.30 a.m. alongwith the informant. The next morning (18.5.1981) inquest was conducted on the body of the deceased at about 5.30 a.m. and the body was sent for postmortem alongwith the report and other papers through constables Pancham and Pramod Kumar. The postmortem was conducted on the dead body of Chattar on 18.5.1981 at 5 p.m. by P.W. 4, Dr. Satyapal, at District Hospital, Saharanpur. The deceased was 55 years in age and according to the postmortem report (Ext. Ka-2). He had the following ante mortem injuries:

Multiple gunshot wounds of entry in an area of 14 cm. x 12 cm. on the entire epigastrium and adjacent parts of umbilical region above umbilicus region. Each wound 0.4 cm. diameter ? peritoneal cavity deep. Direction backward and to left side. 3 pellets were palpable on the left flank under skin around 12th left rib.

Two gunshot wounds of entry each 0.5 cm. ? 0.4 cm. ? muscle deep on antero-lateral aspect of left cubital fossa and directed backwards and lateral, 2 cm. apart. There was no blackening or tattooing.

Multiple abrasions 0.8 cm. ? c.m. in an area of 5 c.m. ? 3 c.m. on left forearm upper third antero-lateral side.

Lacerated wound 0.6 c.m. ? 0.3 c.m. ? bone deep on right side forehead, 1 c.m. above middle of right eye-brow.

Abrasion 2 c.m. ? 2 c.m. just below left patella.

Incised wound 2 cm. ? 0.2 cm. ? skin deep over left tendo-achilles middle.There were 8 pellets and 400 ml. of blood in the abdomen. The stomach was empty and there was digested food in small intestines and faecal matter in the bigger intestines. 10 pellets were found in the liver. There was no blackening or scorching around the injuries Nos. 1 and 2. The death had occurred due to shock and haemorrhage resulting from the injuries.

Apart from the aforesaid two formal witnesses P.W. 4, Dr. Satyapal Singh and P.W. 5, S.I. Raghu Singh, who submitted charge-sheet on 26.5.1981 after completing the investigation, the prosecution examined three eye-witnesses, P.W. 1 Ram Kishan, P.W. 2 Chet Ram and P.W. 3 Ram Swaroop.

P.W. 1, Ram Kishun is the informant and son of the deceased Chhattar. He has reiterated the version mentioned in the F.I.R. above in his evidence.

P.W. 2 Chet Ram, who is the cousin brother of the informant and nephew of the deceased Chhattar, has deposed that on the evening of the fateful day there was a quarrel between him and Asif and he had pushed Asif and Asif had said that he would see him. All the four accused persons had arrived at there common house and had abused and cried out to come out. At that time his uncle Chhattar came out with his lathi and this witnesses and Ram Kishan, Ram Autar and Buddho followed him. Ram Autar and Chet Ram had torches with them and there was moonlight also. Latafat and Quddus assaulted Chhattar with lathi and kanta. Then Chhattar ran to the eastern direction through Shyam Lal''s field out of fear followed by the four accused. The witnesses Chet Ram and others also followed them. Chhattar reached the door sites of Ballan Gaddi. There all the four accused persons exhorted that he should be killed otherwise he would run away. At that time his uncle turned around. Then the accused Asif fired with his gun which struck Chhattar, who fell down and died there. The two other persons Ram Swaroop (P.W. 3) and Puran were 7 or 8 paces from them. Where Chhattar had fallen down there was blood. The Investigating Officer had seen the torches of this witness and other witnesses and returned them to the witnesses.

P.W. 3 Ram Swaroop has deposed that at the time of incident, i.e., at about 10 p.m. he was at his house when he heard some noise. Then he rushed out and reached the door steps of Liyaqat. He lit his torch and there was moonlight also. He saw all the four accused telling Chhattar "Kharhe Hon''ble Jao" (stand stll). When Chhattar turned around, Asif fired, whereupon Chhattar fell and died there at Ballan''s door. Then the accused fled to the east.

In his statement u/s 313, Cr. P.C., the accused had denied the incident and claimed to have been falsely implicated due to enmity. They have also not led any evidence in defence.

We have heard Sri P. N. Misra, senior counsel, on behalf of the Appellants and learned A.G.A.

It was argued by Sri Misra that as the real dispute was between P.W. 2 Chet Ram and Asif, why would he have been spared in the incident and that in normal circumstances Chhattar should have run inside his house and not to the east towards the house of Ballan Gaddi, and therefore, the incident did not take place in the manner suggested by the witnesses, but that the deceased was attacked when he was going alone in front of Ballan Gaddi''s house or some other place. In our view, how a person reacts when he is confronted with danger, cannot be speculated upon. It is quite possible that the deceased might have thought that since all the four accused persons were armed with D.B.B.L. gun, country made pistol, kanta and lathi, it would be better for him to run away, rather than to rush inside the house endangering other family members also. And, apart from this argument there is no other circumstance for buttressing the argument of learned Counsel that the deceased Chhattar was alone at the spot in front of Ballan Gaddi''s house when the incident took place. As the deceased uncle of Chet Ram had rushed out of his house carrying a lathi, he might have remonstrated with the accused. But then finding himself outnumbered by the four armed accused and facing their assaults, he may have decided to run in the eastern direction to save his life, followed by the accused. There he may have been overtaken by the accused, and Arif might have fired on him with his D.B.B.L. gun on the exhortation of the accused. As the deceased was facing the ire of the assault by the accused persons the absence of injuries or assault on Chet Ram does not provide adequate reason for concluding that Chet Ram was absent at that time.

The F.I.R. having been lodged within 3 hours of the incident at 1 a.m., which contained the complete story of the incident and the background as to how earlier in the evening at about 8 or 8.30 p.m. there was a dispute between Chet Ram and Asif at the thresher of Asif and Sabir. There Chet Ram had pushed Asif when he had tried to grapple with him and Asif had fallen down. Smarting from the insult, it appears that Asif, Sabir, Latafat and Quddus had gathered at Chhattar and Ram Kishun''s house and the deceased had come out carrying a lathi. It is not unnatural that seeing the deceased armed with lathi, the accused persons might have got enraged and they decided to assault him, first with lathi and kanta and when he ran away towards Ballan Gaddi''s house the accused caught up with him and there he was fired upon by the Appellant Asif. There appears to be nothing improbable or unnatural in this description of the incident as mentioned in the F.I.R. and the evidence of the witnesses. From the mere words "Aaj Ki Beeti Raat" in the F.I.R., Sri P. N. Misra has sought to argue that the F.I.R. could not have been lodged at 1 a.m. as by then the night had not ended. We think that this is a manner of expression and it could well mean the part of same night which had already been crossed. At any rate, from the mere insertion of these words and from no other circumstances on record an inference cannot be reached that the F.I.R. was ante-timed, particularly when the Investigating Officer had reached the place of incident in village Iknaura which was 10 k.m. away by 3 a.m. and even the inquest had been conducted at 5.30 a.m.

The medical evidence also corroborates the eye-witness account as there are lacerated and incised wounds which P.W. 4 Dr. Satyapal admits could have been caused by lathi and kanta. The story of one shot by the Appellant Asif was consistent with the medical evidence of a single firearm injury having been found on the stomach and chest region of the deceased.

The presence of torch and moonlight has also been mentioned in the F.I.R. and the evidence of the witnesses which would have been sufficient for identifying the accused who were known to the witnesses.

So far as P.W. 3 Ram Swaroop is concerned, it was argued by Sri Misra that his presence at the spot was doubtful as he is not named as a witness in the F.I.R. As he resided at hardly 20 or 25 places from the place of incident, there was nothing unnatural in his reaching the place of incident on hearing the hue and cry at the time of incident.

There is thus absolutely no reason for disbelieving the prosecution story as a whole and no reason exists why the witnesses would have come out with a false story in the manner described above and implicated the accused, if the incident had happened in some other manner or by some other persons, as no significant earlier enmity of the Appellants and witnesses is alleged.

It was finally argued by Sri Misra that so far as Sabir was concerned, his appearance at the spot appears doubtful as there appears to be no corroboration of his role as the single fire was imputed to Asif and this accused has not caused any injury to the deceased. Even the alleged exhortation, immediately prior to the incident, is said to have been given by all the four accused persons. The earlier quarrel was also between Asif and Chet Ram at the thresher of Asif and Sabir and Sabir was not present at that time also.

We find substance in this contention of Sri Misra. Apart from the circumstances alluded to above, it may be noted that there is considerable conflict in the evidence of exhortation by the Appellant Sabir. In the F.I.R. by the informant Ram Kishun P.W. 1 and in his deposition in Court, it is mentioned that when the accused persons arrived at the house of the deceased and the informant, and Sabir called out to them to come out: "nikalo salo bahar". Subsequently when the deceased Chhattar came out and was chased by the four Appellants, then all four of them cried out to kill him otherwise he would run away: "mar do jan se nahi to bhag jayega". The second eye-witness P.W. 2 Chet Ram has stated that when the four accused persons reached at his door, then all of them (and not Sabir alone) began to abuse the informant and others and cried out to them to come out. Thereafter when the deceased Chhattar reached in front of the house of Ballan Gaddi, all the four accused persons cried out to kill him otherwise he would escape: "mar do jan se nahi to bhag jayega". However, P.W. 3 Ram Swaroop, who only speaks of the exhortation at the place of incident with Chhattar, states that the exhortation given by the four accused was only to stop: "khare ho jao". When the deceased turned around the Appellant Asif fired on him.

This manner of joint exhortation has been held to be unreliable by the Apex Court in the case of Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, In that case it was pointed that people do not exhort in omnibus as if in a Greek chorus, and this is a sign of loose thinking and people use the word all, when they mean some. It would be dangerous to record a conviction on such a joint exhortation in the absence of particulars about the participation of each accused. Thus, in the concluding lines in Paragraph 31 in Pandrang it has been observed:

Rasikabai says that the "accused" raised their axes and sticks and threatened her when she called out to them, but that again is an all embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus and quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy, mentally to differentiate. Unless therefore, a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to deduce any prior arrangement to murder from these facts.

In Jainul Haque Vs. State of Bihar, , it has been observed that exhortation by its very nature is a weak piece of evidence and in the absence of clear and credible evidence of exhortation it would be risky to record a conviction on its basis.

Significantly in the present case, the evidence of the witnesses is that at both the places, i.e., in front of the house of the deceased and informant and also at the door step of Ballan Gaddi, the Appellant was said to be armed with a country made pistol, but he has not used the same, although actual use of their arms has been assigned to all the other three accused persons.

In this view of the matter, we are of the opinion that it could not be ruled out that the Appellant Sabir has been falsely implicated in this case only because he was the main owner of the thresher where the quarrel between Chet Ram and Asif took place, and hence the judgment and order convicting him deserves to be set aside.

In this view of the evidence the appeal of the Appellant Asif fails and the judgment of the learned Sessions Judge convicting him u/s 302 read with Section 34, I.P.C. with imprisonment for life is upheld. His bail bonds are cancelled. He may be taken into custody to serve out the sentence awarded to him. The appeal preferred by Sabir succeeds. His conviction and sentence u/s 302 read with Section 34, I.P.C. to imprisonment for life is set aside. His bail bonds are cancelled and he need not surrender to his bail.

With the result, the appeal preferred by the Appellant Asif is dismissed and the appeal preferred by the Appellant Sabir is allowed.

Office is directed to forward a copy of this order to the learned C.J.M., Shahjahanpur for compliance within two weeks. The C.J.M. concerned to submit his compliance report within a month thereafter.