Hafizulla and Others (in Jail) vs State

Vishnu Sahai, J.—Six persons, namely, Hafizulla, Wahidulla, Azimullah, Asimullah, Ibrahim and Samiullah were charged by the I Vth Additional District and Sessions Judge, Sitapur for offences punishable u/s 302 read with Section 149, I.P.C. and Section 323 read with Section 149, I.P.C. In addition, Wahidulla, Azimullah and Ibrahim were charged for the offence punishable u/s 147, I.P.C. and Hafizulla, Samiullah and Azimullah for that punishable u/s 148, I.P.C. The learned Judge, vide judgment and order dated 21.12.1981, passed in Session Trial No. 136 of 1980, convicted all of them for offences punishable under Sections 302 read with Section 149, I.P.C. and 323 read with Section 149, I.P.C. On the former count, he sentenced them to undergo imprisonment for life, on the latter, to three months'' R.I. Further, he convicted Wahidulla, Azimullah and Ibrahim for the offence punishable u/s 147, I.P.C. and sentenced them to six months R.I. and Hafizulla, Samiullah and Azimullah for that punishable u/s 148, I.P.C. and sentenced them to undergo one year''s R.I. The substantive sentences of the said six accused persons were directed to run concurrently.

Aggrieved by their conviction and sentences, the aforesaid six persons preferred Criminal Appeal No. 961 of 1981 in this Court.

During its pendency, Appellant Ibrahim died and his death was confirmed by the learned C.J.M., Sitapur, vide his report dated 15.4.1999. Consequently, the appeal preferred by him abates.

Shortly stated, the prosecution case runs as under:

At the time of incident, informant Sobaran Lal (P.W. 1) deceased Raja Ram, Jagdev (P.W. 3), Bindra (P.W. 5) and the six Appellants, namely, Hafizulla, Wahidulla, Azimullah, Asimullah, Ibrahim and Samiullah were residing in village Mallapur within the limits of police station, Hargaon, district Sitapur. The Appellants were closely inter-related ; Hafizulla, Wahidulla, Azimullah and Asimullah being real brothers, being sons of Ibrahim and Ibrahim and Samiullah being real brothers, being sons of Madar Khan.

About 2-3 months prior to the incident, deceased Raja Ram and one Girija had assaulted Appellant Asimullah. A case was instituted against them in which they were on bail at the time of incident.

On August 30, 1979, Jal Vihar fair was being celebrated in village Mallapur. A dance troupe had been arranged for a sum of Rs. 140. On the said date, at about 2.00 p.m., the informant, deceased Raja Ram and Dinesh Kumar went around the village and started collecting three rupees per house as contribution for paying the dance party. They also went to the house of a carpenter called Manohar where on the issue of contribution, an altercation took place between them and Manohar. At that juncture, the six Appellants came. Appellant Hafizulla was armed with a gandasi, Asimullah with a knife and Samiullah with a bhali and the remaining Appellants, namely, Wahidulla, Azimullah and Ibrahim with lathis. Seeing Raja Ram, the Appellants said that it was a good opportunity. They, caught hold of Raja Ram and beating and dragging Raja Ram took him from Manohar''s door to the chabutra (raised platform) in front of Appellant Ibrahim''s house. There all of them, with their respective weapons belabored Raja Ram. This incident was seen by the informant, Dinesh Kumar, Jagdev (P.W. 3) and Bindra (P.W. 5) from beneath a neem tree situate to the west of Appellant Ibrahim''s house. When the informant proceeded to save Raja Ram, Appellant Wahidulla inflicted two lathi blows on his person. Thereafter, the Appellants ran away. The informant discovered that Raja Ram was dead. He took his copse to the door of Dinesh Kumar and after leaving it there, proceeded to police station Hargaon where he lodged his F.I.R.

The evidence of Head Moharrir Shitla Prasad Verma, P.W. 6 (at the time of giving evidence he was S.I. Cadet) shows that on 30.8.1979 at 4.20 p.m. informant Sobaran Lal came to police station Hargaon and lodged his F.I.R., on the basis of which he registered a case, vide G.D. entry No. 22, a true copy of which is Ext. Ka-4. It is pertinent to mention that in the chik F.I.R. the distance between the place of incident and police station is mentioned as 10 miles.

The evidence of S.I. Mustar Ahmad Khan (P.W. 7) shows that the F.I.R. was lodged by Sobaran Lal at police station Hargaon in his presence and after the case had been registered on its basis, he recorded the statement of Sobaran Lal u/s 161, Cr. P.C.

The evidence of the informant Sobaran Lal shows that after the F.I.R. was lodged and he had been interrogated u/s 161, Cr. P.C., he was sent through a constable along with chitthi majroobi (letter of request for medical examination) for medical examination at Primary Health Centre, Hargaon but since on the said evening, the doctor was not available, he returned to police station Hargaon and next day at 11.00 a.m. he was medically examined.

The evidence of Dr. M. G. Deane (P.W. 4) shows that on 31.8.1979 at 10.55 a.m., at Primary Health Centre, Hargaon, he medically examined Sobaran Lal who was accompanied by constable Awadesh Kumar Misra and found on his person the following injuries:

(1) Abrasion 2" - 2" outer lower part of right buttock.

(2) Traumatic swelling 1" - 1" on the upper part of right buttock.

In the opinion of Dr. Deane, the said injuries were simple in nature ; attributable to blunt object ; and three quarter days old.

The case was investigated in the usual manner by S.I. Mustar Ahmad Khan (P.W. 7) and S.O. J. P. Singh (P.W. 8).

The evidence of S.I. Mustar Ahmad Khan shows: After interrogating informant Sobaran Lal at police station Hargaon itself, he left for the place of incident, which he reached at 5.30 p.m. He thereafter performed the inquest on the corpse of the deceased and sent it for autopsy. The same evening, he inspected the place of the incident and found the chabutra (raised platform) of the house of Ibrahim to be washed with water and consequently did not find blood there. At 7.00 p.m., S.O. J. P. Singh (P.W. 8) also reached the place of incident, and he handed over the investigation to him.

The evidence of S.O. J. P. Singh, P.W. 8 shows: On the date of incident at about 8.00 p.m. he reached the place of incident. He found the chabutra on which the deceased had been assaulted to be washed with water. Next morning, he recorded the statements of some of the witnesses and prepared site plan on the pointing out of the informant. On 22.11.1979, after completing the investigation, he submitted the charge-sheet against Appellants.

Going backwards, the autopsy on the corpse of the deceased Raja Ram was conducted on 31.8.1979 at 3.00 p.m. by Dr. R. S. Agarwal, P.W. 2 who found on it the following ante-mortem injuries:

(1) Incised wound on right side of occipital 3 cm. - 1 cm. - muscle deep from 6 cm. above towards back from right ear.

(2) Incised wound 5 cm. - 1 cm. - muscle deep on right side of scalp 4.5 cm. above injury No. 1.

(3) Lacerated wound 3.5 cm. - 1 cm. - muscle deep on right side of scalp 6.5 cm. above injury No. 2.

(4) Lacerated wound 2.5 cm. - .15 cm. - bone deep on left side of forehead 3 cm. above the left eyebrow.

(5) Abraded contused wound 3 cm. - 2.5 cm. - skin deep from left upper eyelid to left eyebrow.

(6) Punctured wound 2 cm. - 1.2 cm. - 5 cm. right medial to right ear.

(7) Lacerated wound 2 cm. - 1 cm. - muscle deep on right cheek 1.5 cm. right and above the injury No. 6.

(8) Lacerated wound right eye 3.5 cm. - 2 cm. eye deep injuring both upper and lower eye lids, cornea and sclera.

(9) Incised wound on middle side of left leg 9 cm. - 2 cm. - bone deep 3 cm. above the ankle.

(10) Multiple abrasions on left knee 9 cm. - 3 cm. on lateral side.

(11) Multiple abrasions on right knee 3 cm. - 3 cm. on medial side.

(12) Multiple abrasions on left iliac crest 5 cm. - 3 cm. from anterior spinal towards back.

(13) Incised wound 2.5 cm. - 1 cm. - muscle deep on dorsal surface left forearm 7 cm. below the elbow.

(14) Contusion 2 cm. - 10 cm. on dorsal surface on left forearm downwards.

(15) Contusion on left shoulder and upper arm dorsal surface 18 cm. - 7 cm.

(16) Contused wound on dorsal surface of right elbow outer side 3 cm. - 15 cm. - muscle deep.

(17) Contused wound 1.5 cm. - 1 cm. - muscle deep on outer side of right elbow.

(18) Contusion on lower 1/3rd of right arm and upper 1/3rd of forearm 3 cm. - 10 cm. on dorsal surface.

(19) Abrasion on left side of lower region 1.5 cm. - 0.5 cm.

(20) Contusion on the scapular region 15 cm. - 10 cm.

(21) Contused wound on right buttock 2.5 cm. - 1.5 cm. - muscle deep 5 cm. below the iliac crest.

It is significant to point out that on internal examination, Dr. Agarwal found no internal damage.

In the opinion of Dr. Agarwal, the deceased died on account of shock and haemorrhage as a result of ante-mortem injuries suffered by him.

The case was committed to the Court of Session in the usual manner where the Appellants were charged on the counts mentioned in paragraph 1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

During trial, in all the prosecution examined eight witnesses. Three of them, namely, informant Sobaran Lal, Jagdev and Bindra, P. Ws. 1, 3 and 5 respectively, were examined as eye-witnesses.

The learned trial Judge believed the ocular account furnished by prosecution and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and have perused the entire record. In our judgment, this appeal deserves to be partly allowed. We feel that the learned trial Judge erred in convicting the Appellants for the offence punishable u/s 302 read with Section 149, I.P.C. and should have instead convicted them for that punishable u/s 304 Part (II) read with Section 149, I.P.C.

So far as the involvement of the Appellants in the incident is concerned, the same, in our view, has been squarely established from the credible ocular account furnished by Sobaran Lal, Jagdev and Bindra, P. Ws. 1, 3 and 5 respectively.

We now propose analysing their evidence.

The star witness of the prosecution is Sobaran Lal, P.W. 1. Since in paragraph 2 of this judgment we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief we do not want to burden our judgment by reiterating all the details. In short his evidence shows:

The six Appellants were inter-connected, Appellants Hafizullah, Wahidullah, Azimullah and Asimullah being real brothers, being sons of Ibrahim and Ibrahim and Samiullah being real brothers, being sons of Madar Khan. There was enmity between them and deceased Raja Ram because the latter along with one Girja had assaulted Appellant Asimullah about 2-3 months prior to the incident. On the date of the incident, at 2 p.m. when he, Raja Ram and Dinesh started raising contribution for paying the dance troupe which was arranged for a sum of Rs. 140 in connection with Jal Vihar fair, and reached the house of Manohar, an altercation took place between them and Manohar relating to the rate of contribution, which was rupees three per house. At that juncture the six Appellants came to Manohar''s house and seeing Raja Ram said that it was a good opportunity. Thereafter they caught hold of him ; dragged him to the chabutra of the house of Ibrahim ; and assaulted him there. (Hafizullah with a gandasi, Samiullah with a bhali, Asimullah with a knife, Wahidullah, Azimullah and Ibrahim with lathis). When the informant proceeded forward to save Raja Ram, Appellant Wahidullah inflicted two lathi blows on him. His evidence also shows that he, Jagdev, Bindra and Dinesh saw the incident from beneath the neem tree situated to the west of Ibrahim''s house and after the Appellants had run away, they found that Raja Ram was dead. He shifted his corpse to the house of Dinesh and proceeded to police station Hargaon where he lodged his F.I.R. The same evening, he was sent for medical examination, but since the doctor was not available, so he was medically examined on the next day.

We have gone through the evidence of Sobaran Lal and make no bones in observing that we find him to be an implicitly truthful witness.

In the first place it should be borne in mind that he has explained his presence on the place of the incident. He has stated that on the date of the incident, at about 2.00 p.m. while he along with deceased Raja Ram had gone to the house of Manohar in connection with the contribution to be paid to the dance troupe, the six Appellants came there ; caught hold of Raja Ram ; and thereafter the incident took place in the manner mentioned above.

Secondly, his presence on the place of the incident is established by his injuries. He stated that Appellant Wahidulla inflicted two lathi blows on his person. This claim of his corroborated by evidence of Dr. M. G. Deane, P.W. 4 who medically examined him on 31.8.1979 at 10.55 p.m. at Primary Health Centre, Hargaon and found on his person one abrasion and one traumatic swelling, which per his evidence, were attributable to a blunt object and were three quarter days old. We see no reason to disbelieve the evidence of Dr. Deane.

Thirdly, the manner of assault as furnished by him vis-a-vis the deceased is corroborated by medical evidence. He stated that Appellant Samiullah with a bhali, Appellant Hafizullah with a gandasi, Appellant Asimullah with a knife and the remaining Appellants with lathis belaboured the deceased and the autopsy surgeon found one punctured wound, four incised wounds, four lacerated wounds, one abraded contusion, three multiple abrasions, one abrasion and seven contused wounds on the corpse of the deceased. It is true that during examination-in-chief the autopsy surgeon, should have been asked and was not asked by which weapon which injuries could be caused but since it is common knowledge that bhali would cause punctured wound, both gandasa and knife would cause incised wound and lathis would cause lacerated and contused wounds, the said lapse on the part of the prosecution is inconsequential.

It is significant to point out that although Sobaran Lal was subjected to extensive cross-examination but nothing could be extracted therefrom which could impair his credibility. It is true that in proceedings u/s 107/117, Cr. P.C. he along with witnesses Jagdev and Bindra was arrayed one side and the Appellants on the other, but this would make us only evaluate his evidence with a caution and not mechanically reject it. We have exercised the said caution and find it to be credible.

For the said reasons, in our view, the evidence of Sobaran Lal (P.W. 1) inspires implicit confidence and by itself is sufficient to hold the involvement of the Appellants established in the incident.

But fortunately, in this case the prosecution has the luxury of plurality of ocular account forthcoming in the form of evidence furnished by Jagdev (P.W. 3) and Bindra (P.W. 5).

We now propose analysing their evidence.

The evidence of Jagdev (P.W. 3) in short shows: He is a resident of village Mallapur in which the incident took place. On the date and time of incident, while he had gone to the shop of Yaseen to purchase merchandise he heard commotion from the house of Ibrahim and when he reached the neem tree situated to the west of Ibrahim''s house, he saw the six Appellants assaulting the deceased. Since he has furnished the same manner of assault as Sobaran Lal, both in relation to him (Sobaran Lal) and the deceased Raja Ram, we do not want to burden our judgment by reiterating all the details. Since we have found the evidence of Sobaran Lal to be in consonance with medical evidence, it follows as a logical imperative that his evidence is also corroborated by medical evidence.

It is true that in proceedings u/s 107/117, Cr. P.C. he was arrayed along with informant and on the other side the Appellants were arrayed and in his statement recorded u/s 161, Cr. P.C. he did not mention that he had gone to purchase merchandise from the shop of Yaseen and when confronted with the said omission, admitted that it was true, but he has given an explanation for the latter in terms that since he was not asked about it, he did not mention. So far as his being arrayed against the Appellants in proceedings u/s 107/117, Cr. P.C. is concerned, the said circumstance would only make us evaluate his evidence with caution. We have evaluated his evidence with caution and find it credible.

For the said reasons, in our view his evidence also inspires confidence.

We now come to the evidence of P.W. 5 Bindra. His evidence in short shows: He resides in village Mallapur where the incident took place. At the time of the incident, he was at his house and on hearing the cries "Dada Dauro Mare dalat hai" he rushed toward the house of Ibrahim and from a neem tree situated to its west, saw the six Appellants assaulting deceased Raja Ram and also saw Appellant Wahidulla assaulting informant Sobaran Lal with a lathi when the latter endeavoured to save Raja Ram. Since, he has also furnished the same manner of assault both in relation to Raja Ram and Sobaran Lal, as Sobaran Lal we do not want to burden our judgment by reiterating the details. While dealing with the evidence of Sobaran Lal, we have given our reasons as to why we find the account furnished by him to be in consonance with medical evidence. For the same reasons, in our view, the account given by him is also in consonance with medical evidence.

It is true that in proceedings u/s 107/117, Cr. P.C. he was arrayed along with the informant and on the other side the Appellants were arrayed, but this circumstance would only make us examine his evidence with caution and not mechanically reject it. We have exercised the said caution and find it reliable.

For the said reasons in our view, the evidence of Bindra, P.W. 5 also inspires confidence.

We may also mention that assurance to the claim of the three eye-witnesses of having seen the incident is lent by the circumstance that in the F.I.R. of the incident, which as we have seen, was lodged by Sobaran Lal within two hours and twenty minutes of the incident taking place, the police station being situated 10 miles distant, it is categorically mentioned that they saw the incident. It is pertinent to mention the manner of assault as deposed to by them is also the same as in F.I.R.

For the aforesaid reasons, in our view, the learned trial Judge acted correctly in finding the involvement of the Appellants established in the incident. We also feel that he acted correctly in convicting Appellants Hafizullah, Samiullah and Asimullah for the offence u/s 148, I.P.C. ; Appellants Wahidullah, Azimullah and Ibrahim for that u/s 147, I.P.C. ; and all the six Appellants for that punishable u/s 323 read with Section 149, I.P.C.

But we make no bones in observing that the learned trial Judge erred in convicting the Appellants for the offence punishable u/s 302 read with Section 149, I.P.C. We have seen that although three of the Appellants, namely, Hafizullah, Asimullah and Samiullah were armed with deadly weapons, namely, gandasa, knife and bhali respectively, and the other three Appellants were armed with lathis, and all of them launched a concerted assault on the deceased and inflicted as many as 21 injuries on his person, but all the injuries were simple in nature and beneath none of them, the autopsy surgeon found any internal damage. In our judgment, if the common object of the unlawful assembly, of which of six Appellants were members, was to commit the murder of deceased Raja Ram, they would have inflicted some grievous injuries on his person. We make no bones in observing that the number of injuries, ipso facto, cannot be an indicator to construe that the common object of the unlawful assembly was to commit the murder of the deceased or the members of the unlawful assembly knew that the murder of the deceased was likely to be committed.

It is significant to point out that the autopsy surgeon Dr. R. S. Agarwal, P.W. 2 has not stated that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause his death.

In our view, considering the circumstance that three of the Appellants were armed with deadly weapons and the other three Appellants with lathis, yet all the twenty one injuries caused by them on the person of the deceased were simple in nature ; the bulk of them were on non-vital part of the body of the deceased ; coupled with the fact that the motive for assault on the deceased was paltry (2-3 months before the incident, the deceased was beaten by Appellant Azimullah), it would be reasonable and prudent to hold that when the six Appellants launched a concerted assault on the deceased, they committed an act with the knowledge that they were likely to cause his death in terms of clause thirdly of Section 299, I.P.C. the breach of which is punishable u/s 304 Part (II) read with Section 149, I.P.C. Hence, in respect of the assault on the deceased Raja Ram, the Appellants would only be liable for the offence punishable u/s 304 Part (II) read with Section 149, I.P.C. and not u/s 302, I.P.C. read with Section 149, I.P.C.

The question with which we are left is the quantum of sentence to be awarded to the Appellants. So far as the sentence for offences punishable under Sections 147, I.P.C, 148, I.P.C. and 323/149, I.P.C. is concerned, the same in our view is not excessive and does not warrant any interference. So far as that for the offence punishable u/s 304 Part (II), I.P.C./149 is concerned, in our view, considering the over-all circumstances, a sentence of seven years'' R.I. would meet the ends of justice.

In the result this appeal is partly allowed. Although we uphold the conviction and sentence of Appellants Hafizullah, Samiullah and Azimullah for offences punishable under Sections 148, I.P.C. and 323/149, I.P.C. and that of Wahidullah and Asimullah for offences punishable under Sections 147, I.P.C. and 323/149, I.P.C., but we set aside conviction and sentence of all the aforesaid five Appellants for the offence punishable u/s 302/149, I.P.C. and instead find them guilty for that punishable u/s 304 Part (II), I.P.C. read with Section 149, I.P.C. and sentence each one of them to undergo a sentence of seven years'' R.I. which sentence of theirs shall run concurrently along with their sentence on the other counts.

Appellants Hafizullah, Wahi-dullah, Azimullah, Asimullah and Samiullah are on bail and shall be taken into custody forthwith to serve out their sentences.

As observed earlier, C.J.M., Sitapur vide his report dated 15.4.1999 has reported that Appellant Ibrahim has died and the appeal preferred by him stands abated.