Khalid and Others vs State of U.P.

R.K. Rastogi, J.—Criminal Reference No. 21 of 2007 has been made by Sri Subodh Kumar then learned learned Addl. Sessions Judge, Court No. 1, Meerut vide his judgement and order dated 4.8.2007 in S.T. No. 668 of 2003(State v. Khalid and Ors.), whereby he awarded death sentence to the accused appellants Khalid, Nadeem alias Kaliya, Moinuddin, Munna and Tahir under Sections 302/149 I.P.C. subject to confirmation by the High Court and for this purpose he has made this reference. Besides the above death sentence, the accused appellants were also fined Rs. 10,000/- each u/s 302 I.P.C. They were also convicted u/s 307/149 I.P.C. and sentenced to life imprisonment and to a fine of Rs. 5000/-each. They were also convicted u/s 148 I.P.C. and sentenced to R.I. for two years and to a fine of Rs. 2000/- The accused Moinuddin and Tahir were convicted u/s 25 Arms Act also in S.T. No. No. 669 of 2003 and S.T. No. 671/03 and each of them was sentenced to two years R.I. and to a fine of Rs. 3000/-. Criminal appeal No. 5169 of 2007 has been filed by the above named accused appellants against the above conviction order in the aforesaid Sessions trials. Both these matters have been heard together and now we are deciding them by this common judgement.

The prosecution case starts with a F.I.R. lodged by Dr. Mohd.Iqbal Gaji at police station Kotwali Meerut on 7.6.2003 at 2.10 P.M. It is stated therein that the death of Smt. Hamidan, mother of the informant had taken place on the aforesaid date at about 8 A.M. and so his relations had assembled in his house No. 305 Bani Sarai, P.S. Kotwali Meerut. At about 11 A.M. Smt. Shama, sister of the accused Khalid came to his house to attend the funeral rites but the ladies in the house of Dr. Mohd. Iqbal Gaji prohibited her from joining those funeral rites on the ground that Khalid and his other brothers Nadim alias Kaliya, Moinuddin and Munna wanted to forcibly obtain the land of Haji Washiruddin, husband of Smt. Hamidan , and accused Khalid etc. had committed murder of Sarfaraj alias Pappu son of Wahiuddin , uncle of the informant. Thereafter at about 12 Noon the informant''s brothers Dr. Nasiruddin and Salauddin were going to market to purchase articles for the last rites of Smt. Hamidan, and as soon as they reached in front of the Guljar Masjid, accused Khalid armed with a revolver, Nadim alias Kaliya armed with a Rifle. Moinuddin and Tahir armed with guns and Munna armed with a pistol met them and collected around them and they stated that the family members of Dr. Nasiruddin had insulted them and that they would not spare Nasiruddin and fired at Dr. Nasiruddin . On hearing the sound of fires, Mohd. Hasin alias Guddu, Gulam Alauddin alias Prince, Haji Washiruddin, Jalaluddin alias Jallu, Gulam Ghaush alias Sanni and Km. Shaila reached there. Then the above named five accused persons fired at them also from the fire arms in their hands. Consequently, Dr. Nasiruddin alias Jallu, Mohd. Hasin alias Guddu, Gulam Allauddin alias Prince, Jalaluddin alias Jallu, Km. S hail a and Sanni alias Gulam Ghaush were seriously injured. The informant with the help of relatives and neighbours took all the injured persons to M. Prakash Nursing Home, where the Doctors declared that Mohd. Hasin alias Guddu, Dr. Nasiruddin and Gulam Allauddin alias Prince had died. The injured persons were being operated. After the incident the above named five accused persons showing their fire arms threatened the persons present there that if any report is lodged against them or any action is taken, they would also be killed. On account of terror of the accused shops in the market were closed the persons closed doors of their houses also. Thereafter the informant with the help of some persons clandestinely went to the police station and lodged this report. It was further stated that the incident was witnessed by him and Sartaj alias Babli, Salahuddin, Haji Shafiq alias Allah Rakkha and Mohd. Imran etc.

On the basis of above report, the police of police station Kotwali Meerut registered case Crime No. 131 of 2003 under Sections 147 : 148 : 149 : 307 : 302/34 I.P.C. against the accused persons.

The injuries of Gulam Ghaush, Miss Shaila, Mr. Bashiruddin and Mr. Jalaluddin were medically examined at M. Prakash Nursing Home on 7.6.2003.

Gulam Ghaush had received the following injuries on his person:

Lacerated wound of 2 cm. x 1 cm. on medial aspect (R) M.P. joint index finger. No freely bleeding, Depth not probed.

Multiple lacerated wound on all aspects of distal phalanx thumb (L). No freely bleeding. Nail absent. Depth not probed. Bone exposed (distal phalanx).

Km. Shaila had one entry wound of about 3/4 inch on left deltoid region.

Injured Bashiruddin had received the following injuries on his person:

Gunshot wound of entry 1.0 cm. x 1.0 cm. epigasoni joint below Xyphisli. Depth not probed fresh bleeding present. Blackening present.

Gunshot wound of exit 2.0 cm. x 2.0 cm. it. Side abd. Sub constat area and axillary line. Depth not probed fresh bleeding present.

Grazing wound caused by exiting bullet in Lt. forearm and aspect with coordination of 4" x 4" charring wound.

Injured Jalaluddin had one one gun shot injury on left side of chest around 12 noon.

The Post Mortem of the dead body of Nasiruddin was performed on 7.6.03 at 9 P.M. and in the opinion of the Doctor death had taken place at about 1/3rd day prior to the time of post mortem examination. He had one gun shot wound of entry on upper end of sternum near sterno clavicular joint 5 x 2 1/2 cm. under neath sternum fractured.

The Post Mortem of the dead body of Haseen alias Guddu had taken place on the same date and in the opinion of the Doctor death had taken (sic) 1/3rd day prior to the time of post mortem examination . He had (i) Gun shot wound of entry in area of right orbit of eye 8 cm. x 4 cm. right frontal , parietal temporal fractured brain matter was coming out (2) Gun shot wound of exit in � occipital region 6 cm. x 3 cm. brain matter is protruding out and occipital bone fractured.

The Post Mortem of the dead body of Alauddin alias Prince was performed on the same date at 10 P.M. and in the opinion of the Doctor the death had taken place about 1/3rd day prior to the time of the post mortem examination. He had one gun shot wound of entry on left mid axillary.

In the opinion of the Doctor, the cause of death of the above persons was shock and haemorrhage as a result of ante mortem injuries.

It is further alleged that on 11.6.03 the accused Mohd Tahir was arrested and he stated before the police that the accused Munna after firing at Dr. Nasir Uddin from the pistol in his hand had delivered the same to him and that he could get it recovered. Then he went to the house of Nadim alias Kaliya along with police party and got a country made pistol of 315 bore and two live cartridges recovered which had been concealed in a polythene bag below a heap of old gunny bags in the eastern- southern comer of the "Dubari" of the house . On the basis of this recovery, case crime No. 131/03 was registered against accused Mohd. Tahir u/s 25 Arms Act.

It was further alleged that on 12.6.2003 the I.O. of the case received information from an informer that some accused of the present case are planning to visit M. Prakash Nursing Home in Indica Car No. H.R. 16/6594 for the purpose of committing murder of the injured persons and their family members. The police thereafter obstructed the above Car and three persons present in the Car were taken into custody and upon inquiries the driver of the vehicle told his name as Nadeem alias Kaliya and he had kept a D.B.B.L. gun No. 108523 with 11 live cartridges of 12 bore in a belt on the side front seat. He had a licence of this gun which was valid upto 9.4.2005. Two persons were sitting on the rear seat of the above vehicle and out of them one person told his name as Moinuddin and on his search one S.B.B.L. gun of 12 bore and five live cartridges were recovered from his possession and the third person told his name as Munna. All of them were arrested and thereafter Case Crime No. 135/03 u/s 25 Arms Act was registered against Moinuddin and Case crime No. 134/03 u/s 25 Arms was registered against Nadim alias Kaliya.

The police after completion of investigation submitted a charge sheet against the above named five accused persons under Sections 147 : 148 : 149 : 307 : 302 I.P.C. on the basis of which Sessions Trial No. 668/03 was registered against all the accused persons. It also submitted charge sheets against three accused persons named Moinuddin in case crime No. 135/03 u/s 25 Arms Act, Nadeem alias Kaliya in case crime No. 134/03 under Sections 25/27 Arms Act and Tahir in case crime No. 133/03 u/s 25 Arms Act. All the accused pleaded not guilty and claimed trial.

All the accused were charged under Sections 147 : 148 : 149 : 307 : 302 I.P.C. Accused Moinuddin and Tahir were also charged under Sections 25 Arms Act and Nadim alias Kaliya was further charged under Sections 25/27 Arms Act.

The prosecution examined Dr. Mohd. Iqbal Gaji as P.W. 1. He is informant of the case and had lodged the F.I.R. He has narrated the entire FXR case on oath and has proved that F.I.R. as Ext. Ka-1. He has further stated that Dr. Nasiruddin who had been murdered in the above incident was his real brother and deceased Gulam Allauddin alias Prince is son of Dr. Nasiruddin. Injured Km. Shaila and Gulam Ghaush alias Sani also are his daughter and son respectively.

Haji Washiruddin, who is father of the informant, was examined as P.W. 2. He is also an eye witness of the incident and he has corroborated the statement of P.W. Lit may be mentioned that Haji Washiruddin had also received fire arm injury in the incident.

Salauddin was examined as P.W. 3. He has stated that he had come to attend the funeral ceremony of the mother of Dr. Nasiruddin and he had witnessed the entire incident.

Gulam Ghaush alias Sanni was examined as P.W. 4. He is son of the deceased Nasiruddin .He is also an eye witness of the incident and he has I corroborated statements of the above named eye witnesses. He had also f received fire arm injury in the said incident.

Dr. J.P. Bharadwaj, Orthopaedic surgeon, P.L. Sharma, Hospital, Meerut was examined as P.W. 5. He had preformed post mortem of the dead bodies of Mohd. Hasin alias Guddu, Dr. Nasiruddin and Gulam Alauddin alias Prince. He has proved the post mortem reports of these deceased as Exts Ka-2, 3 and 4.

Dr. Rahul Nehra visiting Doctor of M. Prakash Nursing Home was examined as P.W. 6. He had medically examined the injuries of Gulam Ghaush on 7.6.2003 and had performed his operation. He has proved the injury report of Gulam Ghaush and the supplementary report which are Exts. Ka-5 and 6.

Dr. Rajiv Singh was examined as P.W. 7. He was visiting Doctor of M. Prakash Nursing Home and on 7.6.03 he had examined the injured Miss Shaila. She had fire arm wound of entry only on her left shoulder. He has proved her injury report as Ext Ka-7. He has stated that since there was no exit wound , he after examining her injury, got the x ray of the injury done and after seeing the X ray report and plate, he had advised for operation of the injured for taking out the bullet from the wound, and after performing operation he had removed the bullet. He proved the X-ray plates Ext. 1 to 3.

Dr. S.S. Jami was examined as P.W. 8. He was visiting Doctor of M. Prakash Nursing Home and on 7.6.03 he had medically examined Washiruddin. He has proved the injury report as Ext. Ka-8. He stated that the condition of the patient was serious and so his operation was also performed.

Dr. Niraj Goel was examined as P.W. 9. He was also visiting Doctor of Mr. Prakash Norsing Home. He had medically examined Jalaluddin on 7.6.03 at about 12.25 P.M. He had fire arm wound of entry on his chest and his condition was serious and so his operation was performed. He has proved the injury report as Ext Ka-9.

The aforesaid doctors (P.W. 6 to 9) stated that injuries of the person examined by them were caused by fire arm and they could have been caused at 12 Noon on 7.6.03. The injuries of Washiruddin and Jalaluddin which were on their chests were dangerous to their lives.

S.S.I. Samam Singh, P.S. Kotwali Meerut was examined as P.W. 10. He stated that he had prepared the inquest report of deceased Nasiruddin and he has proved it as Ext Ka-10. He had prepared Challan Lash, Photo Lash, letters to the R.I. and the C.M.S. for post mortem of the dead body. These documents have been proved as Exts Ka-10 to Ka-14. Thereafter he prepared inquest report of deceased Gulam Alauddin alias Prince and he proved it as Ext. Ka-15 and thereafter he prepared Challan Lash, Photo Lash, letters to the R.I. and the C.M.S. for post mortem of the dead body which are marked as Exts. Ka-16 to 20. Thereafter he prepared inquest report of deceased Mohd. Hasin alias Guddu which is Ext. Ka 21 and the concerned documents for post mortem are Exts. Ka- 21 to 26. Thereafter he sealed all these dead bodies and delivered them to constables Anar Singh and Kunwar Pal along with aforesaid documents for post mortem of the dead bodies. He further stated that on 11.6.03 accused Tahir had got the country made pistol of 315 bore and two live cartridges recovered from the house of accused Nadim alias Kaliya and its recovery memo was dictated by the Incharge Inspector to him and he had written it on his dictation. He has proved this recovery memo as Ext. Ka-27. He has also identified the pistol as material Ext. 4 and the two cartridges as material Exts. 5 and 6. The cloth in which these items were sealed has been marked as Ext. 7 & the polythene bag in which the pistol was kept is marked as material Ext.Ka-8. He further stated that on 12.6.03 he received information from the informer that three accused of the above case were going in Indica Car No. H.R. 18/8594 and then he along with police party obstructed the Car and arrested Nadim alias Kaliya alias Zamiluddin with his D.B.B.L. Gun and 11 live cartridges, and Moinuddin from whose possession one S.B.B.L. Gun of 12 bore and five live cartridges were recovered and the third person sitting in the Car named Munna (accused) was also arrested. He has proved the recovery memo as Ext Ka-28.

The aforesaid licensed D.B.B.L. Gun and country made pistol were marked as material Exts. 9 and 10 and the black Raxin belt in which 16 live cartridges were kept was marked as material Ext. 11 and the live cartridges were marked as Exts. Ka 12 to Ka 27 and the empty cartridges which were also recovered were marked as Exts. 28 to 45. The pieces of cloths in which these items were sealed were marked as Exts. 46 to 47 and the cloth in which aforesaid arms were sealed was marked as Ext. 48.

He (P.W. 10) has also proved the Chik report prepared by the constable Madan Singh as Ext Ka 29 and its endorsement in the G.D. as Ext. Ka 30. He has also prepared Chik reports of the F.I.R. under the Arms act as Exts. Ka 31 and 32 and their endorsements in the G.D. As Exts. Ka 33 to 34.

Sri Madan Singh was examined as P.W. 11. He stated that when Samam Singh was examined he was under suspension, and so the prosecution had got the documents prepared by him proved by Sarnam Singh, and thereafter Madan Singh was also produced as P.W. 11 and he proved the aforesaid documents .He also proved the Special report as Ext.ka- 35 which he had sent to the higher authorities at 4.25 P.M. on 7.6.03. He further stated that constable Pramod Kumar who had taken the special report had returned back to the police station at 10 P.M. and the entry of his return was made in the G.D. at serial No. 53 by the constable Madao Singh. It has been proved as Ext. Ka- 36. He has also proved the entry regarding arrest of Tahir which had been recorded on 10.6.03 at 11.45 P.M. It is Ext. ka 37.

Sri Kunwar Pal Singh S.I. was examined as P.W. 12. The investigation of this case was assigned to him on 13.6.03. He had recorded statements of several witnesses and he had also submitted charge sheets u/s 25 Amis act against Nadim alias Kaliya and Moinuddin. He has proved the sanction orders of the District Magistrate in this regard and the charge sheets Exts Ka-38 to 40. He had also proved the site plans of the places of recovery of the fire arms as Exts. Ka 41 to 43.

Sri Raj Kumar Singh S.I. Was examined as P.W. 13. He was entrusted with the investigation of the case crime No. 133/03 u/s 25 Arms Act against accused Mohd Tahir and he prepared the site plan of the place of recovery and after obtaining sanction of the District Magistrate he submitted charge sheet against Mohd. Tahir. He has proved the site plan as Ext. Ka 44, the sanction order as Ext. ka-45 and charge sheet as Ext. Ka-46.

Sri Om Shankar Shukla S.I. had taken the charge of investigation of this case on 7.6.03 at 2.35 P.M. from S.I. Sarnam Singh. He was produced as P.W. 14. He had prepared the site plan of the place of incident and had also recovered the blood stained and ordinary earth from that place and prepared their memo. The memo of shoes and clothes recovered at the spot were also prepared by him. He had also recovered 8 empty cartridges of 12 bore from the house of accused Nadim, Moinuddin and Munna and thereafter he prepared their recovery memo. He has proved all these documents as Exts. Ka 47 to 49. He has also proved the search memo of accused Tahir as Ext Ka -50. He had also prepared the recovery of country made pistol and two live cartridges from possession of the accused Tahir on 11.6.03. He also prepared site plan of the place of the recovery. It is Ext. Ka-52. The search memo of the house of Javed khan, who is relation of Khalid, was prepared and proved as Ext. Ka -51. He further stated that on 12.6.03 after arrest of accused Nadim, Moinuddin and Munna. from the Indica Car, the site plan of the place of recovery was prepared by him which is Ext. Ka 53. He further stated that on 19.6.2003 he had taken into possession the blood stained clothes of Iqbal and prepared memo as Ext. Ka-54 and on the same day he had also taken into possession the blood stained Dupatta of injured Km. Shaila and prepared its recovery memo which is marked as Ext. Ka-55. He further stated that Km. Shaila had delivered the blood stained clothes to a dry cleaner and the receipt issued by the dry cleaner in respect thereof to Km. Shaila was identified by him as Ext.-49. He further stated that after obtaining the receipt he went to the shop of the dry cleaner and recovered the cleaned clothes of Km. Shaila and prepared its memo which is marked as Ext. Ka 55. He had also compared the receipt book of the dry cleaner with the receipt given to him by Km. Shaila and for that purpose, after taking the receipt book into his possession, he had given it into Supurdagi of dry cleaner and he prepared the Supurdaginama as Ext. Ka56.

He also proved the site plan of the place of incident as Ext. Ka 57 and the charge sheet as Ext. Ka-58. He also identified the samples of blood stained an ordinary earth as Exts. Ka -50 to 54 and blood stained Dupatta, T. Shirt and Sal war Kurta as Exts. Ka-55 to 58.

In this case statement of Km. Shaila daughter of deceased Dr. Nasiruddin was recorded as C.W.1 on 29.3.06. She corroborated the entire prosecution case on oath in her statement. She had also received fire arm injury in this incident.

The accused appellants No. 1 to 4, in their statements admitted relationship between the parties but they denied rest of the allegations. They also denied the allegation that Shama had gone to the house of Dr. Mohd. Iqbal Gaji on the date of the incident. They also denied this allegation that they had murdered Sarfaraj. They also denied the allegation of firing upon Dr. Nasiruddin alias Jallu, Mohd. Hasin alias Guddu, Gulam Allauddin alias Prince, Jalaluddin alias Jallu, Km. Shaila, Bashiruddin and Sanni alias Gukm Ghaush.They further alleged that the informant Dr. Mohd. Iqbal Gaji was not present at Meerut at the time of the so called incident and he was at Delhi at that time and after coming from Delhi he lodged the false report. They denied the allegation of recovery of fire arms at the instance of Nadeem, Tahir and Moiuddin. It was further alleged by them that they have been falsely implicated in this case by the informant to grab their property. Accused Munna stated that his eye sight is very weak and he is a heart patient and he has been falsely implicated in this case. The accused Khalid stated that Washiruddin etc. were running business of property dealing. They used to take money from others in a fraudulent manner and did not provide land to them, hence they had enmity with a large number of persons and several cases had also been filed against Washiruddin etc. by those persons, and those unknown persons had come on a Motor Cycle at the time of the incident and they had committed the entire incident of firing, and the accused appellants have been falsely implicated in this case due to enmity.

The accused Tahir stated that he had no relationship with either party, and he was residing at a distance of 5 Km. from the place of the occurrence. He was not present on the spot at the time of the incident and he was not even in Meerut at that time. He had gone outside Meerut two days prior to the date of the incident and he was at the house of Man Kureshi at Kanhaiya Sharif on the date of the incident. He further stated that he was arrested by the police at the house of Irfan Kureshi at Kanhaiya Sharif. He denied recovery of any incriminating article from bis possession . He further stated that his brother in law (Sala) Ajij had a dispute in respect of some property with Abid Advocate who is brother in law of deceased Mohd. Hasin alias Guddu and with a view to pressurise him, he was falsely implicated in this case.

Mr. Vishwanath Sahgal, Forensic Science Expert was examined as D.W. 1. He stated that all the injuries of the deceased and the injured persons of this incident had been caused by firing from a gun of 12 bore only and no revolver, pistol or rifle was used in causing these injuries. He has also filed his two reports which are Exts. Kha-1 and Kha-2. He has admitted in the cross examination that he has no degree or diploma of ballistic science with him.

Sri Man Kureshi was examined as D.W. 2. He stated that Mohd. Tahir had come to his house in the first week of June, 03 and had stayed at his house in village Climar Rurki District Haridwar .On 9.6.03 at about 9-10 P.M. the police from Meerut came to his house. Tahir was sitting in his house. The younger brother of Tahir was accompanying the police party and the police party took Tahir with them stating that they would make some inquiry from Tahir and later on he came to know that Tahir had been challaned in a murder case.

Mohd. Aqif was examined as D.W 3.He is younger brother of Tahir. He has stated that on 5.6.03 his brother had gone to Climar Sharif and on 9.6.03 at about 9-10 P.M. the police from Meerut came to his house in village Salempur and inquired about his brother, and then he told the police that his one brother Amir is in the house and his another brother Tahir had gone to Climar Sharif on 5.6.03 and his elder brother Pappu had gone to Meerut in connection with some work. Then the police party stated to him that it has to make some inquiry from Tahir and took Tahir and his brother Amir to the police station Kotwali and inquired from them about their Biradari and about Washiruddin. Then he told the police party that he had no relationship with Bashiruddin and he knows Bashiruddin merely on account of being of the same Biradari. Thereafter the police took Tahir to Climar Sharif in the ambassador Car of the C.O., and after leaching there, the C.O. inquired from Man about arrival of Tahir, and then Irfan told that Tahir had come to his house on 5.6.03. Thereafter the C.O. took Tahir also with him and took them to Meerut. The police released him and his brother Amir on 11.6.03 and when he inquired from the police about Tahir, the police told that Tahir had been sent to Jail in connection with some case.

Ajij was examined as D.W 4. He stated that he is resident of Mohalla Muradnagar District Ghaziabad and on 7.6.03 he received information that wife of Bashiruddin had died. Then he came to Meerut at 8-9 P.M. and came to know that funeral rites of wife of Bashiruddin had been performed in the noon and that three persons of that family had been murdered. He attended their funeral also and thereafter he came to the house of his sister Bashiri at Mohalla Kidwai Nagar. Bashiri is wife of accused Tahir. Upon inquiry Bashiri told that Tahir had gone to Climar Sharif two days ago. He came back to Muradnagar and thereafter after lapse of 4-5 days Rahul son of Tahir came to him and told him that the police had taken Tahir from Climar Sharif and had detained him in jail in connection with murder of the family members of Bashiruddin. Then he came to Meerut along with Rahul and met some persons of the Biradari and asked them to question Bashiruddin as to why he had falsely implicated Tahir in the matter. Then members of the Biradari told him that they would talk in respect of the matter later on. After lapse of about one month when he again came back and went to the house of Bashiruddin along with Kallu, lliyas etc. and asked him as to why he has falsely implicated Tahir in the case, Bashiruddin stated that there was one more dispute regarding a piece of land and then Abid was called from his house, and Abid after reaching that place stated that the suit in respect of the land at Fattelpur may be withdrawn and then the name of Tahir will be dropped from the case. He further stated that this fact was known to every body in the Biradari that Tahir was falsely implicated in this case.

Learned Add. Sessions Judge, after hearing of the case came to the conclusion that the charges under Sections 147, 148, 149, 307, 302 I.P.C. woe sufficiently proved against all the accused persons. He was further of the view that the charges u/s 25 Arms Act were also proved against Tahir and Moinuddin but the charge u/s 25 Arms Act was not proved against Nadeem because he had a valid arms licence, hence Nadeem was acquitted of the charge u/s 25 Arms Act but all the accused namely Khahd, Nadeem alias Kaliya, Moinuddin, Munna and Tahir were convicted under Sections 147, 148, 149, 307, 302 I.P.C. Accused Tahir and Moinuddin were also convicted u/s 25 Arms Act.

After hearing the accused persons on the point of sentence the trial court was of the view that it was the rarest of rare cases in which the . accused had brutally committed murder of three persons named Dr. Nasiruddin alias Jallu, Mohd. Hasin alias Guddu and Gulam Alluddin alias Prince and so the accused appellants deserve death penalty under Sections 302/149 I.P.C. for committing their murder. They were also fined Rs. 10,000/- each u/s 302/149 I.P.C. They were also sentenced to life imprisonment under Sections 307/149 I.P.C and to a fine of Rs. 5000/- each .He further provided that in case of default in payment of fine, they shall have to undergo additional period of R.I. for six months. They were also sentenced to two years R.I. and to a fine of Rs. 2000/- each u/s 148 I.P.C and it was further provided that in case of default in payment of fine, they shall have to undergo additional period of R.I. for 12 months . Accused Tahir and Moiuddin were further sentenced to three years R.I. u/s 25 Arms Act and to a fine of Rs. 2000/- each. It was further provided that in case of default in payment of fine, they shall have to undergo additional period of R.I. for four months. Learned Addl. Sessions Judge awarded death sentence subject to confirmation by the High Court u/s 363 Cr.P.C. and therefore the Reference made by him has been registered as Reference No. 21 of 2007. Aggrieved with the above judgement and order, all the accused have filed joint appeal No. 5169 of 2007 before this Court.

We have heard Mr. Gopal Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal for the accused appellants and Mr. J.S. Sengar, learned Counsel for the complainant as well as Mr. D. R.Chaudhari, Government Advocate for the State.

Learned Counsel for the appellants made the following three submissions:

That the prosecution had failed to prove its case against the accused beyond all reasonable doubts and trial court committed legal error by holding otherwise.

That no case u/s 302 I.P.C. is made out against the accused and the case at the most falls u/s 304 I.P.C.

That the punishment of death sentence is too severe.

We shall take up all these contentions one by one.

First of all we take up the point No. 1.

Learned Counsel for the appellants first of all assailed the F.I.R. of the case.

He submitted that according to the prosecution allegation the incident had taken place on 7.6.2003 at 12 Noon but the F.I.R. was lodged at the police station at 2.10 P.M. He pointed out that the distance of the place of the incident from the police station is 1 Km. only and the F.I.R. was lodged after unreasonable delay which goes to show that it was lodged after premeditation and consultation.

Learned A.G.A. submitted in reply that the informant Dr. Mohd. Iqbal Gaji has stated that after the incident he had taken all the seven injured persons to M. Prakash Nursing Home for their treatment where the Doctors declared that Mohd. Hasin alias Guddu, Dr. Nasiruddin and Gulam Allauddin alias Prince had died. The other four injured persons were examined and medical aid was provided to them, and thereafter he went to the police station and lodged the report. Thus, there is no unreasonable delay in lodging the F.I.R.

It was further submitted by the learned Counsel for the accused appellants that the F.I.R. of this case is ante timed. He pointed out that it was stated in the F.I.R., which was lodged at 2.10 P.M., that the injured were being operated at that time but a perusal of the record show that their operation had not taken place by that time and it was done after 2 P.M. It was further submitted that the F.I.R. was received in the office of the Chief Judicial Magistrate on 10.6.03 and this delay in sending the F.I.R. to the Court again creates serious doubts regarding its genuineness.

Learned A.G.A. submitted in reply that when Dr. Mohd. Iqbal Gaji took the injured persons to the M. Prakash Nursing Home, the Doctors were called there to examine the injured persons and to take necessary steps for their treatment and those Doctors advised X ray and, in the meantime, Dr. Mohd. Iqbal Gaji went to the police station to lodge the report and he wrote in that report that the injured were being operated. He submitted that there is nothing unnatural in the above assertion of Dr. Mohd. Iqbal Gaji and this fact that the operations of the injured were actually done after 2 P.M. can not lead to an inference that the F.I.R. was not lodged at 2.10 P.M.

The plea that the F.I.R. was received in the office of the Chief Judicial Magistrate on 10.6.03 was also raised before the trial court and the trial court has well discussed the delay on the point. It was also pointed out that it was Saturday on 7.6.03 and it was Sunday on 8.6.03. He has pointed out that since the office of the C.O. was closed on 8.6.03, the signature of the C.O. was obtained on the F.I.R. on 9.6.03 and then it was sent to the office of the C.J.M. on that date and since the C.J.M. was on leave on that date, the signature of the C.J.M. was obtained on it on 10.6.03. He has also pointed out that the special report of the case was sent to the higher police authorities on 7.6.03 at 4.25 P.M through the constable Pramod and the constable Pramod returned back to the police station on the same day at 10 P.M. after delivery of the special report. Under such circumstances there is no force in the plea that the F.I.R. was ante timed.

Learned Counsel for the accused appellants referred to some minor contradictions also in the statements of the witnesses and tried to challenge the veracity of their statements on the basis thereof. In this connection it is to be seen that it is a broad day light murder committed at 12 Noon on a public road and the F.I.R. of the incident was ldoged soon thereafter at 2.10 P.M. at the police station . The prosecution case has been proved by Dr. Mohd. Iqbal Gaji P.W. 1, Haji Bashiruddin, P.W. 2, Salauddin, P.W. 3, Gulam Ghaush alias Sanni P.W. 4 and Smt. Shaila C.W.1 who was examined on the request of accused persons. It may be mentioned that out of the above witnesses, all witnesses except Dr. Mohd. Iqbal Gaji and Salauddin had received injuries in this incident so their presence on the spot can not be doubted and there was no motive for them to falsely implicate the accused persons. It may also be mentioned that the medical evidence also corroborates the prosecution case that all injuries to the deceased and injured persons were caused from fire arms. There are some minor contradictions in the lengthy cross examination of the witnesses but such contradictions are liable to take place in the statements of natural eye witnesses of the incident because every body witnesses the incident from his own angle and in the course of description of the incident by each individual there may occur some minor contradictions and discrepancies but those minor variations do not go to show that they are not real eye witness of the incident. On the other hand it goes to show that they are not tutored witnesses.

It is alleged by the accused persons in their statements u/s 313 Cr.P.C. that Bashiruddin etc. were running business of property dealing and they used to take money from others in a fraudulent manner and did not provide land to them and hence they had enmity with a large number of persons and several cases had also been filed against Bashiruddin etc. by those persons and those unknown persons had come on Motor Cycle at the time of the incident and they had committed the entire incident of firing resulting into death of three persons and injuries to four persons,, and the accused have been falsely implicated on account of enmity.

It is to be seen that the above incident in which three persons were murdered and four persons received injuries took place in broad day light at 12 Noon at a public road and the F.I.R. of this incident naming all the five accused persons was lodged soon thereafter at 2.10 P.M. at the police station . Accused persons did not produce any evidence to prove that Bashiruddin etc. were running the business of property dealing. They have alleged that several cases had been filed against Bashiruddin etc. by those persons who had been defrauded by them but no copy of any such case had been produced in the sessions trial. It also appears highly improbable that those unknown persons who had dealings with Bashiruddin etc. came on a Motor Cycle and fired upon the victims and moved away on that motor cycle but their names could not be disclosed in the statement u/s 313 Cr.P.C. Moreover, if the incident had taken place in the manner as alleged by the accused appellants, there was no sufficient motive for the injured eye witnesses to spare those real assailants and falsely implicate the accused persons who are their close relations. The above story propounded by the accused does not inspire any confidence.

The accused Tahir had taken the plea of alibi. He has stated that he was not present at the place of the incident and he was at the house of Man Kureshi at Kanhaiya Sharif on the date of the incident. He had produced Man Kureshi as D.W. 2, his own younger brother Mohd. Aqif as D.W. 3 and Ajij as D.W. 4. The trial court has discussed the evidence of these witnesses in detail in his judgement and has found them unreliable.

It is to be seen that Tahir was named as accused in the prompt F.I.R. and there was no motive for his false implication if he was not present on the spot and if he had not participated in the incident as alleged by the prosecution. It is also to be seen that according to the prosecution case Tahir was arrested by the police on 11.6.03 and at the time of his arrest he told the I.O. that the accused Munna after firing at Dr. Nasir Uddin from the pistol in his hand had delivered the same to him and that he could get it recovered. Then he went to the house of Nadim alias Kalia along with police party and got a country made pistol of 315 bore and two live cartridges recovered which had been concealed in a polythene bag below a heap of old gunny bags in the eastern -southern corner of the Dubari of the house.

It may be mentioned that a perusal of the post mortem report of Dr. Nasiruddin alias Jallu reveals that he had one gun shot wound of entry on upper end of sternum near sterno clavicular joint 5 x 2 1/2 cm. under neath. Sternum fractured. These injuries could be caused from the firing of above pistol of 315 bore. Under these circumstances there is no reason to disbelieve the presence of Mohd. Tahir on the spot and the plea of alibi taken by him has been rightly disbelieved by the trial court.

A perusal of the judgement delivered by the trial court reveals that all the pleas taken by the accused persons have been well discussed by the trial judge in his judgement and he has given cogent reasons for believing the prosecution evidence and rejecting the pleas taken by the accused persons. After perusal of the entire evidence on record, we do not find any sufficient ground to differ with the findings of the trial court on the point of happening of the incident. We are in agreement with the findings of the trial court and confirm the same holding that the the prosecution has proved its case against the accused beyond all reasonable doubts.

Now, we take up the second point as to what offence has been committed by the accused persons.

It was contended by the learned Counsel for the accused appellants that there was no intention of the accused persons to commit murder of any person and it was not a preplanned murder and actually the accused persons got enraged and provoked due to insult of Smt. Shama, sister of the accused Khalid who had gone to the house of Haji Bashiruddin to express her grief due to sad demise of wife of Haji Bashiruddin but the ladies in the house prohibited her from joining funeral rites on the ground that Khalid and his brothers Nadim alias Kaliya , Moinuddin and Munna wanted to forcibly usurp the land of Haji Bashiruddin, husband of the deceased Smt. Hamidan (mother of the informant) and that Khalid etc. had committed murder of of Sarfaraj alias Pappu another son of Bahiruddin and uncle of the informant, and so the accused felt insulted; and so when the family members of the informant were going to purchase articles for last rites of Smt. Hamidan, the accused allegedly f attacked them resulting into death of Mohd. Hasin alias Guddu, Dr. Nasiruddin and Gulam Allauddin alias Prince and injuries to four other persons.

He further submitted that a perusal of the post mortem reports of the victims reveals that they had received one fire arm wound only on their respective bodies. He further submitted that the existence of one fire arm wound only on the bodies of these persons again reveals that the accused had no intention to kill them but they simply wanted to teach a lesson to them, and that is why no second fire was done either on the deceased persons or on the injured persons, and so no offence u/s 302 I.P.C. is made out and the case at the most falls u/s 304 I.P.C.

After careful consideration of the matter, we do not agree with the aforesaid contentions of the learned Counsel for the appellants. It is true that every deceased and injured persons had received one gun shot wound only but it is also to be seen that these fires were done by five accused persons by forming an unlawful assembly for this purpose and every one of the accused persons had a fire arm in his hand and they also fired from those fire arms resulting into fatal injuries to three deceased persons and also fire arms injuries to four injured persons.

The offence of murder punishable u/s 302 I.P.C. has been defined in Section 300 I.P.C. which runs as under:

Murder.- Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly.- If the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of him. Z dies in consequence. A commits murder.

(b) A , knowing that Z is labouring under such a disease that a blow is likely to cause his death , strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword - cut or club- would sufficient to cause the death of a man in the ordinary course of nature Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z''s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and ills of one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

It is to be seen that even if for the sake of argument the contention of the learned Counsel for the appellants that the accused had no intention of causing death is accepted, it is to be seen that the case is certainly covered under Sub-sections (2)(3) and (4) of the above Section because the act as done with the intention of causing such fatal injuries as the offenders knew to be likely to cause the death. In any case the accused committed such an act which was so imminently dangerous which, in all probabilities, could cause death. Their case is also covered under the illustrations ''c'' and ''d''. Even if the contention that they had no intention to cause death is accepted, the accused apparently committed the offence of murder as defined (sic) Clauses 2, 3 and 4 of Section 300 I.P.C.

There is also one more aspect of the case. This incident was committed when the wife of Bashiruddin had died and relations had collected at his house to express their grief. The prosecution allegation is that Smt. Shama, sister of the accused Khalid had gone to the house of Bashiruddin to express her grief but the ladies in the house misbehaved with her. Even if am such incident of misbehaviour with Smt. Shama had taken place, the proper course for the accused, taking into consideration the mental condition of family members of Bashiruddin, was not to take any action at that time and any complaint in this regard could be made after last rites of the deceased Smt. Hamidan It is noteworthy to mention that except accused Mohd Tahir the remaining accused are closely related to the family of the informant and the above act of the accused to commit murder of Nasiruddin son of Bashiruddin whose wife had died on that very day and of Allauddin alias Prince grand son of Bashiruddin and (sic) third deceased Mohd. Hasin alias Guddu who was also their relation and causing fatal injuries to four other persons of their family, was ghastly inhuman and barbarian act crossing all limits of (sic) and now they can not take this plea that they had no intention to kill them and so no case u/s 302 I.P.C. is made out against them.

We, therefore, hold that the accused appellants clearly committed the offence u/s 302 I.P.C. besides the offences under Sections 307/149 I.P.C. and Section 148 I.P.C. and there is no circumstance in their favour for reducing the offence of murder to an offence punishable u/s 304 I.P.C.

Now, we take up the 3rd point regarding imposition of death sentence upon the culprits. We have gone through the reasonings given by the trial court on this point. However, we are not in agreement with those reasonings. It is to seen that it is not a case of premeditated cold blooded murder and actually the incident took place as a result of some misbehaviour with Shama, sister of accused Khalid who had gone to the case of Bashiruddin to express her grief on the death of wife of Bashiruddin, and the accused persons having felt insulted on account of misbehaviour with Smt. Shama attacked Dr. Nasiruddin etc. when they were going to purchase cloths etc. for the last rites of the deceased in which three persons who had received one gun shot wound, died and four persons received one fire arm injury each and it also goes to show that there was no intention of the accused persons to kill the victims at any cost But, apparently, the accused persons fired at the victims from fire arms knowing it fully well that the above act could cause death of the victims and so we have held that they are guilty of the charge u/s 302 I.P.C. Moreover, the act of causing murder of real son and grand son of Dr. Bashiruddin whose wife had died on the same day and murder of his other relatives is a ghastly act violating all norms of humanity and such act of the accused deserves to be condemned. Keeping all these facts into consideration, we are of the view that it is not such a rarest of the rare case/where death penalty should be imposed upon the accused persons and so we set aside the death penalty awarded to them.

Now, the question is as to what punishment should be awarded to the accused appellants? Only two sentences have been provided in Section 302 I.P.C. One is death sentence and the other is life imprisonment. However, the life imprisonment awarded in ordinary course is generally reduced to almost 14 years'' imprisonment. We are of the view that simply awarding life imprisonment which may be reduced to almost 14 years'' imprisonment would not be sufficient in the present case.

In the case of Dalbir Singh and Others Vs. State of Punjab, while substituting the sentence of life imprisonment for death sentence the Hon''ble Apex Court made the following observations in para 14 of the judgement:

The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad v. State of U.P.... Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man''s life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting Court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community can not run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may some remote time repeat murder.

Relying upon the above ruling Division Bench of this court in the case of Babloo v. State of U.P. 2006 (55) ACC 920 observed as under:

The Court also observed that though under the relevant Rules a sentence for imprisonment for life is equalled with a definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. The Court, thereafter, directed that the accused shall not be released from prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. In this case also, considering the facts and circumstances, we set aside the death sentence and direct that for murders committed by him, he shall suffer imprisonment for life but he shall not be released unless he had served out at least 20 years of imprisonment including the period already undergone by him.

This matter also came up for consideration before the Hon''ble Supreme court in the recent case of Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka, and their Lordships summed up the relevant provisions of the Indian Penal Code and Criminal Procedure Code and the legal position in the end of the judgement as under:

The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.

The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court''s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years'' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at ail.

Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of the rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh (supra) besides being in accord with the modern trends in penology.

In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.

Relying upon the above ruling, we are of the view that it is such a case in which the convict should be awarded life imprisonment u/s 302 I.P.C. with this provision that it means imprisonment for whole life and any prayer made by them for remission of the sentence shall not be considered unless they have served out at least 20 years of imprisonment including the period already undergone by them.

Arguments of learned Counsel for both the parties concluded in this case on 23.7.08 and thereafter the judgement was reserved. When the entire judgement had been dictated and it was under process of correction of typing mistakes, written arguments on behalf of appellant No. 5 Tahir were submitted by Sri Vikrant Rana Advocate in the court on 25.8.08. A note to the following effect was appended below the written arguments:

Note: The parcha/power on behalf of the appellant No. 5 was filed by the Counsel for the appellant No. 5 and the same is on the record, however, the name of the Counsel for the appellant No. 5 was not printed in the cause list when the matter was listed for hearing before this Hon''ble Court.

However, after perusal of the entire record we did not find parcha/power filed by Mr. Vikrant Rana on behalf of the appellant No. 5. No copy of this written arguments has been given either to the learned Government Advocate or to Sri J.S. Sengar, learned Counsel for the complainant. The pleas taken in this written arguments are that the appellant No. 5 Tahir was not present at Meerut on the date of the incident and he was present at village Climar Sharif District Haridwar on that date. The appellant No. 5 had examined Sri lrfan Kureshi as D.W. 2, Mohd. Aqif as D.W. 3 and Mr. Ajij as D.W.4. on this point. We have discussed their evidence at pages 20 and 21 of our judgement and have disbelieved the same taking into consideration the fact that he was named as an accused in the prompt F.I.R. and the evidence that Munna had allegedly delivered to him the country made pistol after firing at Dr. Nasir Uddin and the same was recovered on his pointing out from the house of Nadim alias Kalia. The trial court has also well discussed the above evidence regarding alibi of Tahir in paras 94,95,96 and 97 of the judgement and has rightly disbelieved the same .We have gone through these written arguments and we do not find any sufficient ground to disbelieve the prosecution case in regard to participation of the accused appellant Tahir in the incident. The trial court has further observed that the village Climar Sharif is at a distance of 100 Km. only from Meerut and even if had gone to Climar Sharif on 5.6.03, he could easily come to Meerut on the date of the incident i.e. 7.6.03 and there is nothing on record to show as to what was he doing at Climar Sharif from 5.6.03 to 9.6.03. It has also been pointed out that the accused appellant Tahir did not take this plea in the bail application that he was present at Climar Sharif on the date of the incident. The trial court has rightly pointed out that if Tahir had been present at Climar Sharif on the date of the incident, he must have taken this plea at the very inception of the case in his bail application. It has also been pointed out that no suggestion to this effect was given to any prosecution witness in the course of cross examination that Tahir was not present on the spot at the time of the incident and that he was at Climar Sharif on that date, and this story of being at Climar Sharif has been developed at a later stage and so it can not be believed. We, therefore, even after going through the written arguments filed on behalf of the appellant No. 5 and after considering the same on merits, do not find any substance in the allegation that the appellant No. 5 Tahir was at Climar Sharif on the date of the incident and that he had not participated in the incident. On the other hand, it is sufficiently proved from the side of the prosecution that Tahir had actually participated in the incident as held by the trial court as well as by us in the earlier part of our judgement.

In view of our findings recorded above, the appeal is decided in the following manner.

The Criminal Reference No. 21 of 2007 State v. Khalid and Ors. made to this court for confirmation of death sentence is dismissed and the Criminal Appeal No. 5169 of 2007, Khalid and Ors. v. State of U.P. is partly allowed and the death sentence awarded to the accused appellants u/s 302/149 I.P.C. is set aside and this is commuted to life imprisonment i.e. imprisonment for whole life with this provision that they shall not be entitled to be considered for remission of sentence unless they have undergone actual term of 20 years imprisonment including the period already undergone by them and only after expiry of actual term of 20 years'' imprisonment the State may consider their case for premature release or commutation under its norms for remission and commutation of sentence. The sentence of fine awarded to the appellants under Sections 302/149 I.P.C. as well as sentence of imprisonment and fine awarded to them u/s 307/149 I.P.C and 148 I.P.C. by the trial court are confirmed and the conviction of the accused appellants Tahir and Moinuddin u/s 25 Arms Act and the sentence awarded against them for this offence are also confirmed. All the sentences of imprisonment shall run concurrently. Since the accused appellants are in Jail, they shall continue to remain in jail to serve out the remaining sentence.

Let a copy of this judgement be certified to the trial court for its information and necessary action.