Maqsood and Others vs State of U.P.

Poonam Srivastav, J.—Criminal appeal No. 6665 of 2007 preferred by eight Appellants namely Maqsood son of Mehmood, Shakeel son of Yaseen, Jabbar son of Shakeel, Ayyub son of Mehmood, Majhar son of Chhota, Haneef son of Yamin, Khalik and Zinda sons of Yamin against judgment and order dated 24.9.2007 passed by Additional Sessions Judge F.T.C. No. 4, Saharanpur, arises out of Session Trial No. 868 of 1997 whereby Appellant Nos. 1, 2 and 6 were convicted u/s 147, I.P.C. and sentenced to undergo one year R.I., under Sections 323/149, I.P.C. six months R.I., under Sections 308/149 three years R.I. and fine of Rs. 3,000 each. In default of payment of fine, three months additional imprisonment. Appellant Nos. 3, 4, 5, 7 and 8 were convicted under Sections 147, I.P.C. and sentenced to undergo one year R.I., under Sections 323/149 six months R.I., u/s 308/149 four years R.I. and fine of Rs. 1,000 each. In default of payment of fine, one month additional imprisonment.

There are cross cases registered at Case Crime Nos. 65 of 1997 and 65A of 1997 at Police Station Chilkana, District Saharanpur, both cases were tried together, though decided by different judgments but on the same date.

We have heard Sri Anurag Pathak learned Counsel for Appellants, Sri Rajiv Lochan Shukla learned Counsel for first informant and learned A.G.A. for the State.

Occurrence is alleged to have taken place on 5.5.1997 at 11: 30 a.m. First information report was lodged by Musharraf son of Zafar, resident of village Naya Bans, Police Station Chilkana, District Saharanpur against all the accused on the same day at 1: 00 p.m. at Police Station Chilkana, District Saharanpur.

Musharraf and Ameer Ahmed received injuries in the incident. Their injuries were examined by Dr. R. K. Verma. Injury report of Musharraf is Ext. Ka-2 and supplementary injury report is Ext. Ka-3. Injury report of Ameer Ahmed is Ext. Ka-4. X-ray report of Musharraf is Ext. Ka-5.

Prosecution story as unfolded in the first information report, which is cross report registered at Case Crime No. 65A of 1997 under Sections 147, 148, 323 and 504, I.P.C. Police Station Chilkana, District Saharanpur. Police Station is situated at a distance of four kilometres. Narration of the first information report is that first informant came to the house of his brother Mukarram in village Chalakpur. He along with his brother Mukarram, Ameer Ahmed resident of village Saniri were sitting in the gher. They were talking amongst themselves. At the time of occurrence, Ikram and Zabbar sons of Shakeel, Shakeel son of Yaseen, Maqsood and Ayyub sons of Mehmood, resident of village Ghatehra, Police Station Chilkana,Mazhar son of Chhota, Haneef son of Yamin resident of village Sangmaur, Khalik son of Yamin and Zinda son of Yashin resident of village Chalakpur, Police Station Chilkana arrived in a tractor trolley armed with lathi, ballam, palkati and axe (kulhari). They started to take forceful possession of the gher. First informant tried to stop the accused, which resulted in an altercation. Accused Ikram attacked with palkati, Zabbar and Shakeel with axe (kulhari) and Ayyub with ballam, which resulted in injuries to first informant and Ameer Ahmed. Other accused were armed with lathi. On hearing shout, witnesses Mehmood son of Rafeek, Zahid son of Saddik, Iqbal son of Kasam resident of village Chalakpur arrived at the scene of occurrence and intervened.

Prosecution in support of its case, examined seven witnesses namely Ameer Ahmed as P.W. 1, Musharraf P.W. 2 both are injured witnesses, Dr. R. K. Verma P.W. 3, Dr. M. S. Mattad P.W. 4, Ram Bhool Singh P.W. 5, Iqbal P.W. 6, Virendra Singh P.W. 7. Injury report of Musharraf is Ext. Ka-2 and Ameer Ahmed is Ext. Ka-4. Their injuries were examined on the same day.

Injuries of Musharraf examined on 5.5.1997 at 4: 40 p.m. are quoted below:

(1) L.W. 2.5 cm. x 0.5 cm. x scalp deep on Rt. side head 10 cm. away from Rt. ear pinna T.S. 4 cm. x 3 cm. around it. Clotted blood present. Bleeding fresh on cleaning injuries. Adv. X-ray.

(2) C/o pain on abdomen. No noticeable injury seen. K.U.O. for pain abdomen. X-ray advised.

Injury No. (1) is fresh injury. K.U.O. X-ray advised. Injury No. (2) K.U.O. for pain. X-ray advised. Pt. hospitalized.

Supplementary report of Musharraf is as under:

Injury Nos. (1) + (2) K.U.O. X-ray advised. Vide X-ray report No. 597/97.

X-ray skull- shows fracture Rt. parietal bone of skull.

X-ray abdomen- NAD.

Patient hospitalized vide BHT No. 2920 and received from Hospital on 8.5.1997. Hence, injury No. (1) is found to be grievous in nature.

X-ray report of Musharraf is as under:

X-ray skull- shows fracture of Rt. parietal bone of skull.

X-ray abdomen (Erect) NAD.

Injuries of Ameer Ahmed examined on 5.5.1997 at 4: 50 p.m. are quoted below:

(1) L.W. 1 cm. x 0.5 cm. skin deep on top of the skull 13 cm. above from Rt. ear pinna. Clotted blood present. Bleeding fresh injury.

(2) L.W. 2.5 cm. x 0.5 cm. x muscle deep inner aspect in small finger formal Pvt. of (L) hand with T.S. 3 cm. x 2 cm. K.U.O. X-ray advised. Bleeding fresh injury. K.O.F. X-ray advised.

(3) Red abrasion 3 cm. x 1 cm. (L) elbow joint.

(4) Red contusion 12 cm. x 2 cm. left side back of chest at middle near spine oblique.

(5) Red contusion 9 cm. x 2 cm. on left side back down part, horizontally placed.

(6) Red contusion 10 cm. x 2 cm. on Rt. side back of abdomen near mid axillary bone.

(7) T.S. 3 cm. x 2 cm. on Rt. wrist joint.

Opinion: Fresh injury. Nature caused by hard and blunt object. Injury No. (2) K.U.O. X-ray advised small finger (L) hand. Rest injuries are simple.

The admitted facts are that one Khursheed Namberdar was owner of 105 bighas of agricultural land. He had only two daughters namely Hasina and Zariyan. Injured Zulekha wife of Ikram deceased, is daughter of Hasina. Ikram''s daughter Firdaus alias Sahjadi is married to accused Ashraf. Zariyan (another daughter of Khursheed and sister of Hasina) had one daughter Wahidan who was married to one Zafar. Three accused Mukarram, Musharraf and Ashraf are son of Wahidan and Zafar. Appellants in the instant appeal, as already detailed, Ashraf is an accused, Khairati is brother of Zafar (husband of Wahidan), accused Babu is son of Khairati.

Khursheed Namberdar died three and half months before the date of incident but during his life time, he had sold 23-23 bighas of land to his two daughters. Remaining 60 bighas of land was bequeathed by Khursheed Namberdar, 30 bighas to three sons of Wahidan daughter of Zariyan and remaining 30 bighas to two sons of Zulekha. Mukarram used to live with Khursheed since a very long time in the house where the incident took place. Hasina was also alive at the time of incident and lived in the same house i.e., in another room of the same house where accused Mukarram used to live with Khursheed. There is no Will nor any valid deed of transfer in respect of the said house, therefore, this was the only property which was subject of dispute.

Zulekha resides in village Saniri which is 5 kilometres away from the place of incident. It was Khursheed who was instrumental in getting Appellant Ashraf married to Firdaus alias Sahjadi daughter of Zulekha and deceased Ikram.

Submission is that brother of injured Musharraf, Mukarram was apprehending attempt by accused to dispossess him. The accused who claimed a share in the residential house of Khursheed had come on a tractor and trolley loaded with haystacks and were also armed. Mukarram tried to stop them from storing their haystacks in the gher. This led to an altercation between the two parties, which resulted in injuries on both sides.

Ameer Ahmed P.W. 1 and Musharraf P.W. 2 were examined as witnesses of fact. They have also received injuries. These witnesses have reiterated the prosecution version detailed in the F.I.R. Assertion by both witnesses is that the accused had come to occupy the house and gher in question fully prepared. The injuries were caused by them.

The doctor P.W. 3 has proved the injuries and has deposed that injuries caused to P.W. 2 were grievous in nature and could have proved fatal if timely medical assistance was not provided.

P.W. 4 Dr. M. S. Mattad is radiologist and proved X-ray report. He substantiated that parietal bone of Musharraf was fractured.

P.W. 5 is H.C.P. 17 Ram Bhool Singh who is a formal witness, P.W. 6 Iqbal is a nearby resident and claims to have arrived after the incident. He was declared hostile since he declined to have witnessed any incident. P.W. 7 Virendra Singh was the Investigating Officer.

Sri Anurag Pathak appearing on behalf of defence has, at the very outset claimed benefit of right of private defence since a number of persons injured on his side and Ikram died as a consequence of injuries.

We have given a careful consideration to the testimony of witnesses, arguments advanced on behalf of defence and submission on behalf of the State.

It is apparent that accused and complainant belong to one and the same family. There was a dispute regarding residential house, which was in occupation of Mukarram and Hasina. There was no quarrel during the life time of Khursheed but after his death, residential house was the only property which was neither bequeathed to anyone nor transferred to any of the family members, on the contrary Mukarram and Hasina continued to reside in the said house since a long time, therefore, descendants of two daughters namely Hasina and Zariyan claimed their right over the said house, which led to the altercation and resulted in death of Ikram.

We have noticed that injuries were caused on both sides. Musharraf has received grievous injuries which resulted in fracture of parietal bone, on the other hand Ikram died in the incident and thus two cross cases were instituted. Therefore, it appears to be a free fight from both sides. The Appellants do not belong to village Chalakpur but had come all the way from another village Saniri. Brother of first informant Mukarram was residing in the house which was the bone of contention. Thus, there was preparation from both sides either to hold possession of the gher or take over possession which resulted in brawl between the two parties and injuries on both sides. Presence of accused is admitted who had also received injuries. One of them died and, therefore, the accused in the instant appeal cannot escape liability of causing injuries after making preparation to forcefully occupy a portion of the house and gher. Accused and complainant are closely interlinked and there is no previous enmity between them.

Sri Anurag Pathak has asserted emphatically that the Appellants are entitled to right of private defence since one person died on his side and several others injured. The learned Sessions Judge examined all the aspects and arguments as well as injury reports and other evidence. He declined the benefit because the prosecution has successfully established that accused came fully armed from another village on their tractor and trolley to take possession. Thus, the complainant can by no imagination be termed to be ''aggressor''. We are in agreement with his findings and, therefore, of the opinion that accused are not entitled to the benefit claimed by them.

We proceed to examine the prosecution case and judgment of conviction on other aspects in the light of argument advanced on behalf of the Appellants and analyse the evidence and its appreciation by the Sessions Judge.

In view of the fact that presence of Appellants is admitted, they have evidently come to take possession and cause injuries to other side. They cannot escape their liability of causing injuries which resulted in fracture of parietal bone of Musharraf. All the same, we are not in agreement that Appellants had committed offence with an intention or knowledge or attempt to cause death, therefore, their conviction u/s 308, I.P.C. is not maintainable but they cannot escape the consequences of their illegal act of causing grievous injuries to Musharraf. The Appellants have come from another village, fully armed with an intention to take forceful possession of their share in the house. The doctor has also stated that injuries of first informant was grievous in nature and could have been dangerous if timely treatment was not given to him.

In the circumstances, they are liable for conviction for their said act. They did constitute an unlawful assembly and come to the house of Mukarram. Therefore, they are liable for causing injuries to the two injured. If some of them did not cause injuries even then they cannot escape responsibility of the act as they had accompanied the accused with a view to procure possession by use of force. They came in group of eight to commit the offence. They had full knowledge of all consequences, therefore, conviction u/s 147, I.P.C. is upheld. However, conviction u/s 308, I.P.C. is modified and accused/Appellants are convicted for offence under Sections 325/149, I.P.C. Sentence of four years R.I. is reduced to one year and fine of Rs. 1,000 each. In default of payment of fine, one month additional imprisonment. Conviction u/s 323, I.P.C. is set at naught. Criminal appeal is also partly allowed.

The Appellants are on bail and shall be taken in custody to serve out the remaining sentence.

Let a copy of this judgment along with lower court record be sent to the learned Sessions Judge, Saharanpur for necessary compliance.