Marghoob and Others vs State of U.P.

Pratyush Kumar, J.—17 accused are before us having been convicted in Session Trial No. 174 of 1981 (State v. Jabir and others) challenging the correctness of the impugned judgment and order dated 14th October, 1983 whereby respondent No. 1 was convicted and sentenced under sections 148 and 302 IPC and punished with two years rigorous imprisonment and imprisonment for life, respectively. Other accused were convicted under sections 147 and 326 read with section 149 IPC and punished with one year''s rigorous imprisonment and six years rigorous imprisonment respectively.

In the appeal prosecution version as is unfolded by FIR may be summarised as under:

"That on 15th May 1980 at 8.30 p.m. Maksood Ahmad gave a written report stating therein that at that date at about 5.30 p.m. Mohd. Ilias alias Achchhan picked up quarrel with the first informant and his brother Manjoor Ahmad disputing their right of way. In the meanwhile Kamaruddin, Shamsuddin, Jabir, Ahmad Noor, Sabir, Nasim, Wasim, Sajjad, Multamish, Muqtadir, Mohd. Zahir, Salim, Kadir, Ayub, Zakir, who having farmed common object of murdering him and his brother, armed with lathis came at the door of the first informant''s house. Ilias alias Achchhan struck one blow of lathi on Manjoor. Raising alarm, both the brothers in order to save themselves, ran towards the house of Maseeuddin. On their alarm Maseeuddin, Afaq Ahmad, Ezaj, Rasool, Fasiuddin, Naseer Ahmad, Khaliq Ahmad, Zaheer alias Nanhe came there warning the accused persons. Magroob came out of his house having armed himself with the licensed gun of his father and fired the gun shot on his brother who sustained gun shot injuries on his face, chest and forearm. Nearby Ram Nath Kori tethering the ox and Afaq lifting his Jhakra were also hit by the gun shot. His brother died. Action be taken against the accused persons."

On this written report chick FIR was scribed. Case Crime No. 55 of 1980 was registered at police station Patranga, District Barabanki. Requisite entry was made in the general diary. Investigation was initiated. Postmortem examination was conducted on the dead body of Manjoor Ahmad. Afaq Ahmad and Ram Nath were medically examined. After conclusion of the investigation charge sheet was submitted.

After committal of the case to the Court of Session, appellant Magroob was charged under sections 148 , 302 and 323 read with section 149 IPC and others were charged under sections 147 , 323 /149 , 302 /149 IPC. The appellants denied the charges and claimed to be tried.

On behalf of the prosecution besides documentary evidence (written report, postmortem report, F.I.R., Copy of Report, Injury Report, Injury Report, Copy of Report, Medical Report, Medical Report, Inquest Report, Site Plan, Site Plan, Recovery Memo etc.) in oral evidence 11 witnesses were examined. After close of prosecution evidence, statements of the accused were recorded under section 313 Cr.P.C. wherein they denied the facts stated by the eye witnesses, pleaded ignorance about the medical evidence and steps taken by the police officers.

According to them due to enmity, they had been falsely implicated and also, eye witnesses were deposing against them. After conclusion of the trial and hearing the arguments of the parties, the appellants were convicted and sentenced. Respondent No. 2 to 17 were acquitted from the charges framed under sections 302 /149 IPC. However, they were convicted under sections 147 and 326 /149 IPC. One accused Mohd. Juber was acquitted from all the charges.

Feeling aggrieved all the convicted 17 accused have preferred this appeal.

Heard Sri Nagendra Mohan, Advocate appearing for the appellant and Ms. Madhulika Yadav, learned AGA for the State respondent.

At the very outset learned counsel appearing for the surviving appellants has submitted that so far as conviction and sentence of the surviving appellants are concerned, these are against the material available on record and law. According to him prosecution has failed to prove any common object of the unlawful assembly, while Magroob, appellant No. 1 (since deceased) had fired the fatal shot on his own without premeditation with the other appellants and he had been convicted under sections 148 and 302 IPC. How the appellants could be held guilty of being members of such an unlawful assembly. There is neither any allegation nor any evidence to prove common object to cause grievous hurt with dangerous weapon to the deceased, his brother and two other injured. The basis of his argument is that it is a categorical case of the prosecution that the appellants were armed with lathis. Neither deceased nor any injured had received any wound caused by blunt object. All the three received injuries from the gun shot. According to him an unlawful assembly having member more than 16 could not fail to inflict even one lathi blow on two persons. According to him prosecution case is unnatural and improbable. The respondents have been illegally convicted. His next argument is that appellants were never charged under section 326 /149 IPC. They could not be punished under this charge in the garb of minor offence treating charge of 302 /149 IPC to be a major charge.

On behalf of the State these arguments have been repelled and the findings recorded by the learned trial judge have been justified and impugned judgment is claimed to be perfectly legal and sound.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, . Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First we would like to have a glance at medical evidence. Dr. K.K. Khare, P.W.4 who conducted, on 17th May, 1980 at 11.30 postmortem examination on the dead body of Manjoor Ahmad, according to him time since death was 36-40 hours. Death had occurred due to shock and haemorrhage as a result of ante mortem injuries.

Witness has proved the postmortem report wherein the following ante mortem injuries have been recorded.

"1. Three pea size round firearm the wounds 1.5" apart from each other on the left side of face 1/2" below the left eye wound of entrance.

One pea size gunshot wound of entrance on the bridge of nose. Fracture of frontal bone present.

Two big pea size wounds of exit on the Rt. side of cheek 1" below the Rt. eye 1'' apart from each other.

One pea size round wound of entrance on the front of chest in the 4th inter costal space just left lateral to the para sternal border on the left side of chest."

Since the correctness of medical evidence or death of Manjoor Ahmad has not been disputed, we rely on the statement of Dr. K.K. Khare, P.W.4 and hold that on 15th May, 1980 at about 5.30 p.m. Manjoor Ahmad was done to death by inflicting gun shot wounds.

Dr. R.C. Gupta, P.W. 6 is the Medical Officer who on 16th May, 1980 had medically examined injured Ram Nath and Afaq at 3.15 p.m. and 3.30 p.m., respectively. The witness has proved injury reports wherein on the person of Ram Lal and Afaq Ahmad the following injuries were recorded:--

"Injuries of Ram Lal

Abrasion on in front of chest Rt. side.3 cm x.3 cm with contused swelling all around. Vide Ext. Ka-5.

No blackening and scorching present 5.5 cm away from nipple R. Circular in Sharpe.

Injuries of Afaque Ahmad

Abrasion on back of left leg middle.3 cm x 3 cm circular in Share, 24 cm from left heal, No mark of Blackening or scorching vide Ex. Ka-6

Dr. A.K. Srivastava, P.W.9 is the radiologist who had X-rayed the injured Ram Nath on 17.5.1980. In x-ray examination on the person of Ram Nath he found the radio opaque shadow of some metal of high density. However, in x-ray examination of Afaq Ahmad no such radio opaque shadow or injury was found. He proved x-ray report of Ex. Ka-8 and Ka.9."

In view of the above neither the deceased nor any injured received any injury caused by blunt object. Now we have to consider whether prosecution has successfully proved its case against the accused persons by ocular evidence and whether the accused persons were members of an unlawful assembly having common object to murder or cause voluntarily grievous hurt with dangerous weapons to the deceased and the injured persons.

First informant Maksood Ahmad (PW-1), is the brother of the deceased. He had lodged the first information report. He has admitted that there are acrimonious relations between him and the accused party. Thus he is not only a relative witness but also he is inimical to the accused persons. Though he claims that fire was aimed on him and his brother but he had not sustained any injury. Only being first informant he cannot be treated to be natural and probable witness. For the reasons mentioned above his testimony requires to be scrutinised carefully.

Afaq Ahmad (PW-2) is an injured witness who also substantiates the prosecution version to some extent. He had seen that accused persons chasing Manjoor and Maksood and accused persons were armed with lathis. When Manjoor and Maksood reached near the grove of this witness, Magroob fired on Manjoor. He has not witnessed how the incident had started. He has sustained pellet injury on his leg which is simple in nature. On the material point to wit he has seen the occurrence and manner of occurrence, statement of this witness is discrepant with the prosecution version.

Maseeuddin (P.W.3) also substantiates the prosecution version. He has admitted that he was on inimical terms with the accused persons. In the cross-examination he has stated that when the accused Magroob fired Maksood and Manjoor were running away. Ante mortem injuries sustained by the deceased are either on the face or front of the chest. This leads us not to place reliance on his testimony.

Another injured witness Ram Nath was not examined. There are discrepancies between the testimonies of Maksood Ahmad (P.W.1) and Afaq Ahmad (P.W.2) on material points. Testimony of Maksood Ahmad (P.W.1) requires to be scrutinised carefully. When his deposition is read as a whole it does not inspire our confidence. His version of the incident appears to be unnatural and improbable. When the altercation continued for 10-15 minutes and the witness and the deceased were surrounded by so many accused persons who were armed why he was not beaten and how he and the deceased managed to run away, have not been explained by this witness. It is also unnatural that when surrounded by such an assembly any one would enter into an altercation instead of saving themselves. He has claimed that he saved himself from the fire taking shelter of the wall. However, during the cross-examination he admits that this wall was of charni. Hight of charni extends only upto 2-2-1/2 feet. Thus reasons assigned by him for not getting injured by gun shot stands falsified. We do not think that his testimony can be relied upon as a whole.

Afaq Ahmad (P.W.2) gives better account of the part of the incident. He has categorically stated that Magroob fired on Manjoor, the deceased. On this point his testimony receives supports from the medical evidence and statement of Maksood (P.W.1).

So far as formation of unlawful assembly having unlawful common object is concerned, there is only deposition of Maksood (P.W.1) on this part whose testimony except of one point i.e. firing of fatal wound by Magroob has been found unworthy of reliance.

Learned trial Judge has found Maksood (P.W.1) to be a reliable witness on account of promptness of FIR. Promptness of FIR only excludes possibility of deliberation and embellishment in it. It does not guarantee correctness of the facts stated therein. We do not find on this ground Maksood Ahmad (P.W.1) can be relied upon. Learned trial judge has also erred in overlooking this fact that 16 persons armed with lathis had altercation with the first informant and the deceased and chased them to substantial distance but could not inflict single lathi injury. The learned trial judge has not given any specific reason for believing the testimony of Afaq Ahmad (P.W.2) and Maseeuddin (P.W.3). The learned trial judge has failed to appreciate the eye witness account narrated by the witnesses properly.

Findings recorded by the learned Sessions Judge are against the weight of the record. 17 persons out of which 16 were armed with lathis but none on the either side received injuries from lathis itself shows that neither these 16 persons were not members of unlawful assembly having common object of committing any offence. The prosecution has failed to prove the charges against the present appellants except Magroob since deceased. The impugned judgment and order to this extent are erroneous that except Magroob other accused persons had formed an unlawful assembly having any common object either of committing murder of Manjoor Ahmad or causing grievous hurt with dangerous weapon i.e. gun to any.

The appeal so far as it relates to deceased Magroob, Zabir, Ahmad Noor, Muqtadir, Qzmaruddin, Mohd. Shamshuddin, Mohd. Ilyas alias Achchhan stands abated on account of their death. Appeal of the surviving appellants is well founded. Impugned judgment and order for the reasons indicated above are not sustainable. Resultantly appeal succeeds.

Criminal Appeal No. 741 of 1983 (Marghoob v. State of U.P.) filed by the surviving appellants is allowed and the impugned judgment and order dated 14th October, 1983 are set aside. Conviction and sentence awarded to the surviving appellants are also set aside. The surviving appellants are on bail, they need not surrender their bail. Their personal bond and surety bonds are hereby cancelled and the sureties are discharged.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.