Kallu and Others vs State of U.P.

Vishnu Sahai, J.—Through this appeal, the Appellants challenge the judgment and order dated 22.12.1979 passed by I Ind Addl. Sessions Judge, Barabanki in Sessions Trial No. 18 of 1976, whereby they have been convicted and sentenced in the manner stated hereinafter:

Samiullah: u/s 302, Indian Penal Code to imprisonment for life.

Kallu, Makhdoom and Rafiq.: u/s 302 read with Section 34 of the Indian Penal Code to imprisonment for life.

It is pertinent to mention that during pendency of the appeal, Appellant Rafiq died. Consequently, vide order dated 6.11.1996 passed by a Division Bench of this Court (D. K. Trivedi and Dr. M. Saran, JJ.), appeal against him was disposed of as abated.

Shortly stated, the prosecution case runs as under:

The Appellants were the associates of Moharram Ali and his son Iqbal. Four to five months prior to the incident, a dacoity was committed at the house of Shambhoo, a resident of village Nabiganj, wherein informant Museebat Ali P.W. 1 resided. Appellant Kallu and Iqbal used to tell the deceased Munna not to depose on behalf of the prosecution in the said case but Munna deposed for the prosecution in it. In the Idd preceding the incident, deceased Munna came to village Suryamau to meet his maternal uncle and phoopha. That day a quarrel took place between him and Iqbal on account of the aforesaid dacoity case. When Munna was returning, after meeting his maternal uncle and phoopha, at the instance of Iqbal, he was waylaid. In respect of his being waylaid, Munna lodged an F.I.R. ; 2 to 3 days later Iqbal lodged a false F.I.R. of highway robbery against Munna. Munna was arrested in the case and 10 to 15 days later released on bail.

About two weeks thereafter, i.e., 18.11.1975, Munna along with his brother Museebat Ali P.W. 1, both residents of village Nabiganj, proceeded to Suryamanu market for purchasing colour and soot (thread) from the shop of Bashir. Munna was 20-25 paces ahead of Museebat Ali. At about 3 p.m., Munna sat down on a bench to have tea at the shop of Mahboob. At that time, Mahboob was not there and the same was being managed by a boy named Irfan, aged about 14 to 15 years. As soon as Munna sat down, the four Appellants came and felled him down from the bench. He fell on the ground. Thereafter, Appellant Kallu caught hold of his head, Appellant Makhdoom of his legs, Appellant Rafiq assaulted him with a knife and Appellant Samiullah attacked him on his neck with a knife used for butchering animals. Munna raised cries, hearing which Museebat Ali P.W. 1, Ghulam Dastgeer P.W. 2 and Nankau P.W. 3 and some others came. They saw the incident. After assaulting Munna, the Appellants ran away. Thereafter, the aforesaid witnesses came near Munna and found him dead. They also found blood smeared on the ground.

One amongst the number of persons who had collected on the place of incident was Yonus. Museebat Ali got F.I.R. of the incident scribed by Yonus, who after scribing it read it to Museebat Ali, who thereafter affixed his thumb impression on it. Thereafter along with the F.I.R. Museebat Ali proceeded to Police Station Ram Nagar, where he lodged the F.I.R.

The evidence of S. O. Divakar Prasad Pandey P.W. 5 shows that on 18.11.1975 at about 6.5 p.m. in his presence, the F.I.R. was lodged and was registered by constable Moharrir Wali Mohammad, who prepared chik F.I.R., which was also signed by him (S. O. Divakar Prasad Pandey).

The evidence of S.O. Divakar Prasad Pandey P.W. 5 shows that after the F.I.R. had been lodged, he commenced the investigation same day. On a Jeep, at about 7 p.m. he reached the place of incident, where he found the corpse of Munna lying near the shop of Mahboob. In the presence of Public Panch Ram Lakhan P.W. 4 he prepared, the inquest of the corpse and seized from the place where it was lying plain and blood stained earth in separate containers. Same day, he recorded the statement of the informant Museebat Ali and on his pointing out, prepared site plan Ext. Ka-10.

Next day, i.e., on 19.11.1975 at about 7 a.m., he again commenced the investigation. He recorded the statements of Ghulam Dastgeer P.W. 2 and Nankau P.W. 3 and some others.

On 20.11.1975, all the Appellants surrendered in the Court. He recorded their statements, and searched the houses of the Appellants on 22.12.1975.

After completing the investi-gation, he submitted the charge-sheet.

Going backwards the autopsy on the corpse of the deceased Munna was conducted on 19.11.1975, at about 3 p.m. by Dr. V. N. Agrawal P.W. 7, who found on it the following ante-mortem injuries:

(1) Incised wound 10 cm. 3 cm. 5 cm. on front of middle of neck cutting trachea and oesophagus through and through completely.

(2) Incised wound 2 cm. ? 1/2 cm. ? 1/4 cm on top of right shoulder.

(3) Incised wound 4 cm. 1 cm. cavity deep on the right side abdomen upper part.

(4) Incised wound 3 cm. 1/2 cm. ? 2 cm. on right side back on the middle.

(5) Incised wound 2 cm. 1/2 cm. ? ? 1 cm. situated 4 cm. below injury No. 4.

(6) Incised wound 4 cm. ? 1 cm. ? 2 cm. on right side lumber region back.

(7) Incised wound 3 cm. ? 1/2 cm. ? 1 cm. outer side of right thigh upper part.

On internal examination, Dr. Agrawal found tear of the dimensions of 3 cm. ? 1 cm. ? 1 cm. on the lobe of liver on the right side and trachea and oesophagus cut through and through beneath injury No. 1.

In the opinion of Dr. Agrawal, the ante-mortem injuries suffered by the deceased could be caused by sharp-edged weapons like knife and knife used for cutting animals and the said injuries were sufficient in the ordinary course of nature to cause the death.

The case was committed to the Court of Session in the usual manner where the Appellants were charged for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code They pleaded not guilty to the charge and claimed to be tried.

During the trial, in all the prosecution examined eight witnesses. Three of them namely the informant Museebat Ali, Gulam Dastgeer and Nankau P. Ws. 1, 2 and 3 respectively furnished ocular account.

The defence of the Appellants was that they had been falsely implicated, but they adduced no evidence in their defence.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the Appellants in the manner stated in Para 1.

Hence, this appeal.

We have heard learned Counsel for the parties, perused the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution, the statement of the Appellants recorded u/s 313 of the Criminal Procedure Code and the impugned judgment. Having given our anxious consideration to the matter, we are constrained to observe that we do not find any merit in this appeal.

We have also already mentioned in Para 1 that the appeal preferred by the Appellant Rafiq stands abated on account of his death.

A perusal of the impugned judgment shows that learned trial Judge has founded the conviction of the Appellants on the ocular testimony furnished by three witnesses, namely, Museebat Ali, Ghulam Dastageer and Nankau, P. Ws. 1, 2 and 3 respectively. In Para 2 of this judgment, we have set up the prosecution story on the basis of the recitals contained in their examination-in-chief and do not want to burden our judgment by reiterating the details. In short, what emerges from their evidence is as under:

On 18.11.1975, the deceased Munna along with his brother Museebat Ali had gone to Suryamau market to purchase soot (thread) and colour from the shop of Kallu. At about 3 p.m. while Munna was sitting on a bench at the tea stall of Mahboob and the informant was 20-25 paces behind him, the Appellants pounced upon him and threw him on the ground. Thereafter Appellant Kallu caught hold of the head of Munna, Appellant Makhdoom of his legs, Appellant Rafiq assaulted him with a knife and Appellant Samiullah belaboured him on his neck with a knife used for butchering animals. On the cries of Munna, they (the three eye-witnesses examined by prosecution) and some others came and saw the incident and thereafter the Appellants ran away.

We have gone through the statements of Museebat Ali, Ghulam Dastgeer and Nankau and make no bones in observing that we find their evidence to be implicitly reliable. All of them have explained their presence on the place of incident.

Museebat Ali has stated that at the time of incident, he was accompanying Munna.

Ghulam Dastgeer has mentioned that at the time of incident, he had gone for a shave at the shop of Iqbal, which was situated in the immediate proximity of the place of incident and on hearing cries of Museebat Ali and Munna, rushed up to the place of incident and saw the incident. It is pertinent to mention that Ghulam Dastgeer is a resident of Suryamau where the incident took place.

Nankau has stated that at the time of incident, he had gone to Suryamau market to purchase mustard oil and he purchased the same from the shop of Lakhan and while he was returning, he heard cries and proceeded to the place of incident where he saw the incident.

Not only do we find that the aforesaid three eye-witnesses have explained their presence on the place of incident, but we also find that the manner of incident as unfolded by them is corroborated by medical evidence and probabilities. All of them have stated that the Appellant Kallu was catching hold of the head of Munna, Appellant Makhdoom was catching hold of his legs, Appellant Rafiq was assaulting him with a knife and Appellant Samiullah was assaulting him on his neck with a knife used for butchering animals. We find their statements to be credible.

In our judgment, for launching an effective assault on Munna and for ensuring that he did not run away, it was necessary for two of the Appellants, namely, Kallu and Makhdoom to have caught hold of him.

The evidence of these witnesses that Appellant Rafiq assaulted Munna with a knife and Appellant Samiullah with a knife of butchering animals, on his neck, is corroborated by medical evidence. We have earlier reproduced the ante-mortem injuries suffered by the deceased. In our view, ante-mortem injury No. 1 suffered by the deceased, which was an incised wound of 10 cm. ? 3 cm. ? 5 cm. on front of middle of neck, cutting trachea and oesophagus through and through completely, was caused by the knife blow inflicted by the Appellant Samiullah on the neck of Munna and other injuries were attributable to the knife assault launched on him by Appellant Rafiq.

We are not unmindful of the fact that witnesses Museebat Ali and Ghulam Dastgeer are interested witnesses, the former because he was the brother of the deceased and the latter because proceedings u/s 107/116 of the Criminal Procedure Code took place between him on one hand and the Appellants Kallu and Makhdoom on the other. However, in our view, this circumstances would not make us mechanically reject their evidence, but only scrutinize it with caution. The proposition is far to well-settled to require elucidation by any authority but since reference to and reverence of authorities has become the order of the day, we do not wish to deviate and the authority which must readily come to our mind is that of Masalti Vs. State of U.P., . We have scrutinized the evidence of the said witnesses with caution and find it to be credible and trustworthy.

We also find the evidence of Nankau to be trustworthy. We wish to emphasize that he is a wholly independent witness, who had no ill-will or grudge against the Appellants and that being so, we see no reason as to why he would have falsely implicated the Appellants.

In our judgment, the evidence of the aforesaid three witnesses inspires confidence and is a safe basis for sustaining the conviction of the Appellants on the counts referred to in Para 1.

Assurance to the ocular account is also forthcoming by a prompt F.I.R. of the incident, which was lodged by Museebat Ali. The incident took place on 18.11.1975 at about 3 p.m. and the F.I.R. was lodged the same day at 6.5 p.m. at police station Ram Nagar, which is situated 12 kms. from the place of incident. It is significant to mention that in the said F.I.R., the basic features of the prosecution case have been mentioned and the Appellants along with their specific overt acts, have been nominated.

Criminal courts attach great importance to the lodging of a prompt F.I.R. because the same substantially diminishes the possibility of embellishment and the concoction in the prosecution case. In our judgment, this prompt F.I.R. of the incident lends a seal of assurance to the ocular account furnished by the three eye-witnesses, who have been named therein.

Another circumstance, which lends assurance to the ocular account is the circumstance that the Investigating Officer promptly interrogated the three eye-witnesses u/s 161 of the Criminal Procedure Code As seen earlier, he interrogated the informant Museebat Ali on the date of the incident itself and recorded the statement of the other two eye-witnesses the following morning.

The importance of prompt interrogation of witnesses u/s 161 of the Criminal Procedure Code also cannot be over-emphasized. Prompt interrogation diminishes the possibility of witnesses giving cooked-up version in their statements.

Another circumstance, which lends credence to the ocular account, which is that Munna was assaulted in front of the bench of Mahboob''s tea stall, is that the Investigating Officer not only recovered the corps of Munna therefrom, but also blood stained earth, which was sent to the chemical examiner, who found it to be stained with blood.

For the aforesaid reasons, in our view, the learned trial court acted correctly in convicting and sentencing the Appellants in the manner stated in Para 1.

We would be failing in our fairness if before proceeding to the operative part of the judgment, we do not refer to the principal submissions canvassed by Mr. Nagendra Mohan, learned Counsel for the Appellants.

Mr. Nagendra Mohan firstly and principally contended that the claim of the eye-witnesses that they saw the incident is belied by the medical evidence. He urged that the evidence of informant Museebat Ali shows that the Appellants pulled down the deceased Munna from the bench and felled him on the ground and thereafter Appellant Rafiq with a knife and Appellant Samiullah with a knife used for slaughtering animals assaulted Munna ; the latter assaulted Munna on his neck. Mr. Nagendra Mohan urged that this version of the eye-witnesses cannot be accepted because ante-mortem injury Nos. 4, 5 and 6 were on the back of the deceased. He urged that since deceased had been felled down on the ground prior to being assaulted, he could have not sustained the said injuries. We have reflected over this submission and are constrained to observe that we do not find any merit in it. During his cross-examination, in Para 22, informant Museebat Ali stated thus: "Maine Munna ko mare jate waqt chhatpatate dekha tha who dahini karwat leta tha hamne usse dahini se bai karwat palatate dekha tha jab who karwat badal raha tha tab bhi mara ja raha tha."

A perusal of the said statement would show that the premise of Mr. Nagendra Mohan''s submission that when Munna was being assaulted, his back was on the ground, is unfounded.

At any rate, it should be borne in mind that if the ocular testimony is credible then even if there is some variation between it and the medical evidence, it cannot be rejected. In this connection it would be useful to advert to the observations contained in Para 12 of the decision rendered by the Apex Court in the case of Solanki Chimanbhai Ukabhai Vs. State of Gujarat, , which read thus:

Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not be possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

For the aforesaid reasons, this submission of Mr. Nagendra Mohan fails.

Secondly, Mr. Nagendra Mohan urged that since the evidence of the eye-witnesses does not show that while Munna was being assaulted, Appellants had caught hold of his hands, Munna would have tried to save himself with his hands and in that endeavour, sustained injuries thereon. He contended that absence of any injury on the hands of Munna belies the ocular account. We have reflected over the submission and are constrained to observe that we do not find any merit in it. In our judgment, merely because Munna did not sustain any injury on his hands, it cannot be said that the ocular account does not inspire any confidence. It may be that the first knife blow inflicted on Munna caused injury No. 3, which was an incised wound 4 cms. ? 1 cm. ? cavity deep on the right side of abdomen upper part, involving tear of 3 cm. ? 1 cm. ? 1 cm. on right lobe of the liver upper part and on account of this injury, Munna was so seriously injured that he could not move his hands. Hence, this submission also fails.

Mr. Nagendra Mohan thirdly contended that the presence of informant Museebat Ali P.W. 1 and Nankau P.W. 3 on the place of incident is unnatural. He contended that there was no reason for Museebat Ali to accompany his brother Munna for purchasing soot (threat) and colour. In our experience, there is nothing improbable if Museebat Ali, who was brother of Munna accompanied him. It may be because Munna had enmity with Iqbal S/o Moharram Ali, the informant might have thought that it was not safe for Munna to proceed alone and hence accompanied him. Similarly we are not inclined to agree with the submission that Nankau''s presence is not plausible. Mr. Nagendra Mohan canvassed this submission on the basis of the fact that in statement u/s 161 of the Criminal Procedure Code, Nankau has not stated that he had gone to Suryamau market to purchase mustard oil. However, when Nankau was confronted with this omission, he stated that since the Investigating Officer had not asked him as to why he had gone to Suryamau market, he had not mentioned the reason to him. In such a situation, in our view, Nankau cannot be faulted because in his statement u/s 161, Criminal Procedure Code, there is no mention of the fact that he had gone to Suryamau market to purchase mustard oil.

Fourthly, Mr. Nagendra Mohan urged that the F.I.R. of the incident was not actually lodged at 6.5 p.m. on 18.11.1975 but was lodged later on and is ante-timed. We are constrained to observe that we do not find any merit in this submission. It is significant to point out that in the inquest of the corpse of the deceased, which was conducted on 18.11.1975 at 7 p.m., both the time of the lodging of the F.I.R., i.e., 6.5 p.m. on 18.11.1975 and the crime number, which was registered on the basis of the F.I.R., namely, 257 u/s 302, Indian Penal Code have been mentioned.

Fifthly, Mr. Nagendra Mohan urged that if the incident took place on the date and time alleged by the prosecution, then why no witness of the locality came to depose in respect of the incident. The answer to the submission is given by the informant Museebat Ali in his examination-in-chief, wherein in Para 9 he has stated that on account of pressure of Moharram Ali, Pradhan, witnesses of the locality were not forthcoming. It is relevant to point out that in Para 9 of his statement, Museebat Ali has stated that he had given an application to Superintendent of Police that Moharram Ali, Pradhan, was trying to pressurize the witnesses.

Finally, Mr. Nagendra Mohan contended that at any rate Appellants Kallu and Makhdoom, who are assigned the role of catching hold of the head and legs of the deceased, respectively, be given benefit of doubt because possibility of their false implication on account of enmity cannot be ruled out. We are constrained to observe that we do not find any merit in this argument. It is common knowledge that for launching an effective assault with a weapon like knife on a person, catching hold is necessary because the same ensures that he does not run away or offers any resistance. In our view, nature of the injuries, especially injury No. 1, suffered by the deceased, make it extremely probable that Appellant Kallu and Makhdoom caught hold of him and thereafter, Appellants Rafiq and Samiullah assaulted him. For the said reason, this submission also fails.

For the aforesaid reasons, we dismiss this appeal. We confirm the conviction of the Appellant Samiullah for the offence punishable u/s 302, Indian Penal Code and sentence of imprisonment for life awarded to him thereunder and also confirm the conviction of Appellants Kallu and Makhdoom for the offence punishable u/s 302 read with Section 34, Indian Penal Code and sentence of imprisonment for life awarded to them, thereunder.

Appellants Samiullah, Kallu and Makhdoom are on bail. They shall be taken into custody forthwith to serve out their sentence.

As mentioned earlier, Appellant Rafiq is dead and the appeal against him stands abated.