Margoob and Others vs State of U.P.

K.D. Shahi, J.—This appeal has been filed by Margoob, Insert and Kashi against the judgment and order dated 23.6.1982 passed by Shri Om Prakash, the then Sessions Judge, Saharanpur in Sessions Trial No. 1 of 1982, State v. Margoob and Ors. convicting and sentencing the Appellants to undergo life imprisonment for having committed the offence u/s 302 read with Section 34, I.P.C.

The brief facts of the case are that Sri Islam son of Mumtaj lodged a First Information Report at police station Badgaon, district Saharan on 31.7.1981 at 7.20 p.m. with the allegations that an enmity was going on with his uncle Faiyaz and Fayez''s nephew (Bhatija) Margoob. Before two months of the occurrence Margoob has filed a case in the Court at Dab and against Faiyaz. On 31.7.1982 itself at about 5.30 p.m., the informant Islam, his uncle Faiyaz and daughter Israna aged about 10 (ten) years were coming back from Devband towards village side. Accused Margoob, his servant Insar son of Deenu and Kashi son of Ikram came armed with country made pistol. They met them at the border of village Nonabadi and Simon and as they reached near them, Insar fired at Faiyaz. Faiyaz tried to run away but he fell down in the field. After he fell down both Margoob and Kashi fired at Faiyaz. The informant and Israna ran towards the village and the accused persons ran away after killing Faiyaz. The occurrence was witnessed by Matloob (P.W. 2) and Mamudeen etc. who were working in the fields.

The informant took Faiyaz to police station at Ghore-buggi (Horse-Cart) and got the First Information Report Ext. Ka-1 lodged at the police station Badgaon, district Saharanpur.

When the F.I.R. was lodged, the victim was alive and therefore the case was registered u/s 307, I.P.C. only. The Investigating Officer took the investigation of the case in his hands. He recorded the statement of injured Faiyaz u/s 161. Code of Criminal Procedure at the police station itself. The copy of the said statement of Faiyaz is Ext. Ka-12. The said statement Ext. Ka12 has been accepted because the victim subsequently died and that has been tried to be used as dying declaration.

However, the Investigating Officer took the blood-stained clothes of Faiyaz in his possession and prepared Fard Ext. Ka2. On 1.8.1981, the Investigating Officer reached village Nunabadi and recorded the statement of Israna and Imamuddin. He inspected the spot in presence of informant Islam and Israna and prepared the site plan Ext. Ka-13. He did not get any blood on the spot because it rained. Hari Ram (P.W. 8), the Investigating Officer, however, recovered one cartridge from the spot and prepared the Fard Ext. Ka-14. He also recovered one Machis (match) box. one cartridge and one pair of shoes where Faiyaz had fallen down and prepared Fard Ext. Ka-15.

On 2.8.1981, victim Faiyaz died and the case was converted u/s 302, I.P.C. The bloodstained clothe (Tahmad) of deceased Faiyaz was deposited at the police station on 3.8.1981 by Ghasitu, nephew of the deceased, and the Investigating Officer prepared Fard Ext. Ka-9. On 3.9.1981, the investigation of the case was taken up by the Station Officer In charge Sri O. P. Sarsoot and later on from O. P. Sarsoot to Sri V.D. Jakhmola and the Investigating Officer has submitted the charge-sheet Ext. Ka-16.

After the case has been registered, the victim was sent to P.A.C. Nanaudha for medical examination and treatment. Doctor K. K. Yadav (P.W. 6), Medical Officer- Incharge medically examined the injury of the victim Faiyaz and prepared the injury report Ext. Ka-10. The doctor has found the following injuries on the person of the victim:

(1) Lacerated wound 9 cm. x 6 cm. x bone deep on left side face with fracture lower jaw present (wound of exit ).

(2) Lacerated wound 2 cm. x l''/2 cm. on right side chin (bone deep) blackening around the wound present. (Probable wound of entry).

(3) Lacerated wound 2 cm. x 1V2 cm. on left upper arm middle and front. Blackening present.

(4) Lacerated wound 2 cm. x 1/2 cm on left side chest 7 cm. below nipple at 6 O''clock position, blackening around the wound present abdominal cavity deep (wound of entry).

(5) Lacerated wound 2 cm. x 3/4 cm. on left side abdomen upper part at 4 O''clock position 15 cm. below left nipple blackening around wound present (Abdominal cavity deep) wound of entry.

The doctor also found the injuries grievous in nature. He further reported that the injuries have been caused by fire-arm from a distance less than four feet. He also found fresh bleeding and fresh injuries.

After the injured had died, the post-mortem was conducted by Dr. A.K. Jain. (P.W. 7) of District Hospital. Saharanpur. He has also found the same injuries at the person of the deceased Faiyaz and the doctor has reported that the death of the victim has been caused due to shock and hemorrhage as a result of firearm injuries.

After the victim has died. Sub-Inspector Sri Mangoo Singh Verma who was posted as S. I. at police station Kotwali Nagar, Saharanpur, was instructed to prepare the inquest report of the dead body. He visited the hospital and prepared the inquest report Ext. Ka-3. He also prepared photo lash and challenge laash Ext. Ka-4 and Ext. Ka-6.

After the case was committed to the Court of Sessions, the learned Sessions Judge Sri Om Prakash charged all the three accused persons of the charges u/s 302 read with Section 34, I.P.C. The charges were read over, translated and explained to the accused persons in Hindi. They pleaded not guilty of-the charges and claimed to be tried.

In proof of the case, the prosecution examined as many as 8 eight witnesses. Out of whom Islam is the informant and eye-witness, Matloob (P.W. 2) is also an eyewitness, (P.W. 3) Israna is the daughter of the deceased and she is also an eye-witness. Her age was 9 years on the date of her examination in the Court. She was queried by the learned Sessions Judge and the learned Sessions Judge found her a fit-witness. However, the learned Sessions Judge did not administer oath to Israna as she was below ten years. The learned Sessions Judge recorded the entire statement of Israna in question and answers form. Ors. witnesses are the police witnesses and the doctors.

P.W. 1, the informant Islam has stated that Faiyaz was his real uncle and accused Margoob was his cousin and the Ors.two accused Insar and Kashi were of the group of Margoob. Insar was also the servant of accused Margoob. He further stated that on the day of occurrence time was 5.30 p.m. He along with Faiyaz and daughter Israna were returning from Devband to Bahele and as soon as they entered the Jungle of their village, Margoob, Kashi and Insar came armed with country-made pistol. Insar fired at Faiyaz and Faiyaz tried to run away but fell down in the plot. All the three accused persons reached there and thereafter Margoob and Insar each made fires at Faiyaz. Witnesses Matloob, Kaloo, Hajj am and Ors. came. The blood was oozing from the person of the victim. The victim was brought to police station Badgaon on a Ghora-buggi and the informant got the First Information Report written. In the cross-examination, he admitted the enmity regarding motive. The informant stated that before 5-6 years of this occurrence, Margoob had threatened Faiyaz. Margoob had lodged a case against Faiyaz and Iqbal before 2''/2 months of this occurrence. The informant admitted that the compromise had been done in this case. However, nobody can sit in the mind of the criminal. The witness further stated that they had boarded in Motor at Devband and got down at Bahele. The village Bahele is at a distance of three miles from the village Devband. In the cross-examination the informant stated that nobody fired at him or Israna or the Ors. witnesses. Regarding the injuries of Faiyaz he admitted that the jaw of the victim was broken and it was hanging. The blood was oozing profusely from the mouth of Faiyaz and he remained at the police station for ten minutes and thereafter sent to hospital. He denied the suggestion that Faiyaz was not able to speak at the police station and his statement was recorded the Ors. day Farzi.

P.W. 2, Matloob is also an eye-witness. He stated that at about 5-5.30 p.m. he was cutting gross in the plot of Alisher and Faiyaz, Israna and Islam were coming together from Bahele. Thereafter he saw the accused persons, namely, Margoob, Insar and Kashi, who had come from village end. He stated that first Insar fired at Faiyaz and Faiyaz ran away and all the accused persons chased him then Kashi first fired at him and thereafter Margoob fired. He also stated that the statement of Faiyaz was recorded by the Investigating Officer at the police station and at that time the victim was talking. In the cross-examination he admitted that his village is at a distance of 1'' of furlongs from the place of occurrence. He has got no Chak there but he has got 50-60 Bighas of land.

P.W. 3. Israna is the daughter of Faiyaz. She is an eyewitness. She also stated that accused Insar first fired at Faiyaz then Kashi and Margoob fired at him. In the cross-examination, she was suggested that he had been in the office of the State Counsel and she had been tutored.

P.W. 4. S. I. Mangoo Singh Verma and prepared the inquest report, photo laash and chalan laash and the letter for the post-mortem. He was not cross-examined.

P.W. 5. Sahendra Pal Singh was posted as Head Constable at police station Badgaon. He prepared the chick report and made entry of the case in the G. D. (General Diary). He further proved that on 2.8.1981 he converted the case from Section 307, I.P.C. to Section 302, I.P.C. He was suggested that the First Information Report was ante-timed and he also suggested in the cross-examination that the jaw of Faiyaz was broken but he was, still able to speak.

P.W. 6, Dr. K.K. Yadav has proved the injuries of the victim. He has proved that the victim was able to speak at the time of his examination. He also admitted that the jaw of the victim was fractured and it was hanging out.

P.W. 7, Dr. A.K. Jain had conducted the post-mortem of the dead body of Faiyaz. He, however, stated that looking to the injuries of the victim, It was difficult for him to speak.

P.W. 8, S. I. Hari Ram has proved the investigation of the case and also that he had recorded the statement of Faiyaz at the police station. The prosecution has filed an affidavit of Dharmpal Singh, Constable No. 68. who had taken the dead body of the victim to the Sadar mortuary in sealed condition for postmortem.

After this the prosecution closed its evidence and the statements of the accused persons were recorded. Accused Margoob stated that Faiyaz was real uncle of the informant, Islam and he was also cousin of the victim. He admitted the case but stated that it had been compromised and the Ors. allegations were denied. He stated further that he had been falsely implicated. Accused Insar stated that he was the servant of Margoob but he had left the service before one year of this occurrence. He admitted that he was a witness in the case of Margoob and thereafter he had been implicated. Accused Kashi alias Kasim has also denied the entire prosecution story and alleged false implication.

The accused persons were called upon to enter into their defence. They did not examine eyewitnesses in their defence.

After hearing the learned Counsel for the parties, the learned Sessions Judge found the charges proved against all the three accused persons and, therefore, convicted them u/s 302 read with Section 34, I.P.C. and after hearing on sentence, he sentenced all of them to undergo imprisonment for life.

Being aggrieved by the above said judgment and order of conviction and sentence, all the three Appellants have preferred this appeal. We have heard the learned Counsel for the parties and gone through the records. The factum of death of Faiyaz is admitted. His identity has also not been challenged. Faiyaz died due to injuries. His injuries have also not been challenged. Therefore, the factum of murder of Faiyaz as well as his identity has not been challenged rather it has been admitted. The argument of the learned Counsel for the Appellants was that Faiyaz was killed somewhere in the Jungle. Nobody did see the occurrence and when dead body was found, the accused persons were implicated in this case. The accused persons alleged that there was no motive of this murder.

As regards the motive of the case, it is argued that in these days everybody has become so sensitive that he can commit murder for trifling matter. There is also no ground for false implication. The informant has got no enmity of his own against any of the accused persons. He has got no axe to grind by false implication of the present accused persons. It is an admitted fact that there was litigation between, the deceased and the accused Margoob and that has been compromised only before 21/2 months of the occurrence. Even after compromise what was there in the mind of the accused persons can better be known by him/them. It is also an admitted fact that Insar was the servant of Margoob. He is also witness on the side of accused Margoob in the earlier litigation. Although he has said that he had left the service of Margoob before one year of the occurrence but still if he was a witness to support the case of Margoob, there is nothing astonishing that he was of the group of Margoob and could have committed murder for him. Accused Kashi alias Kasim is also said to be of the group of Margoob. When there is clinching and reliable evidence, motive losses importance.

Coming to the reliability of the witnesses, P.W. 1, Islam has stated that he was coming from Devban along with Faiyaz and Israna and he saw the occurrence. He was equally related to the victim as well as accused Margoob and there is absolutely no reason for him to have given false statement in this case. The accused persons could also get nothing in the cross-examination of the witnesses that he should be disbelieved rather in the cross-examination dated 11.5.1982, the witness was suggested that he had run away from the spot out of fear and could not have seen the occurrence. The actual statement is "yah kahna galat hai ki ham dar ki vajah se bhag pade our main wa israna gaon ke taraf ko bhage aur ghar chale gaye." The suggestion reveals that the presence of the informant as well as Israna on the spot is admitted. It is only said that looking to the assault they ran away. According to the prosecution case, when the first fire was made by Insar then the victim fell down. Margoob and Kashi made one fire each. In the statement u/s 161 Code of Criminal Procedure the informant has also made a similar statement but in the statement in the Court Islam staled that first Insar fired and when the victim fell down. Margoob and Insar again fired. He did not state any fire by Kashi. This statement appears only a slip of tongue Ors. wise the consistent case of the prosecution is that all the three accused persons made on fire each. The witness was not cross-examined about this contradiction any where and. therefore, this mistake is to be ignored. The witness is a fully reliable witness and there is nothing in his statement to disbelieve.

As regards Israna, she is a child witness. She has withstood the test of examination and in the cross-examination she has given a very consistent and cogent statement which shows that she is a fully believable witness and is not to be rejected merely because she is a child witness and the daughter of the victim. She has stated that the first fire was made by Insar then by Kashi and then by Margoob. She was suggested that she was brought by the police to the Court. She admitted this fact. She is a witness of the State. It was the duty of the State to bring her. Every State witness in every case is brought by the police to the Court but the witnesses are believed and disbelieved on intrinsic value of their statements. The police is also paid for that. The fare of the witnesses is borne by the State Government and not by the police. Police is an independent agency. The police have no interest either in acquittal or in conviction. The police has got no reason to force any witness to give statement in any particular manner. However, the witness Israna further admitted that she was taken to the District Government Counsel (Criminal) by the police before appearing in the Court. Now-a-days everybody goes to his counsel before appearing in the Court, if the accused persons did not go there counsel? They also go. Naturally, ninety per cent of the defense is carved out by the defense counsel but nobody has got any objection to it in the Courts. The accused persons in their examination u/s 313. Code of Criminal Procedure almost always remains silent and dumb. They do not even speak a single word. All cross-examination and the suggestion to the witness is made by the defense counsel. Nobody says that this is case of defense counsel and this is not the case of accused persons. Everybody has got a right to consult his lawyer. If a witness goes to the lawyer before being produced in the Court, it cannot be said that he or she is tutored one. The State counsel also queries the witness to know whether the witness should be produced in the Court or not. No State Counsel can all of a sudden produce a witness in the Court without knowing what the witness is going to state. There cannot be any presumption that only because the witness met the D.G.C. he will give false statement. If the child witness Israna had not seen the occurrence and if she was not an eye-witness in the case, she has no reason to give names of the accused persons in her statement and also she has no reason to come to the Court. However, she has specifically stated that she has given statement on being asked for but she further stated that she has given the statement only what she had seen and she has not given any false statement. Whatever question was put to her, she correctly replied. If the witness had been tutored, she would have certainly given contradictory statement in her examination-in-chief or cross-examination. If the witness is truthful in admitting that she was brought by the police, she met the D.G.C. (Criminal), she will be deemed to be truthful in each and every respect. She has fully corroborated the prosecution story and is a fully believable wine Government Counsel (Criminal) by the police before appearing in the Court. Now-a-days everybody goes to his counsel before appearing in the Court, if the accused persons did not go there counsel? They also go. Naturally, ninety per cent of the defense is carved out by the defense counsel but nobody has got any objection to it in the Courts. The accused persons in their examination u/s 313. Code of Criminal Procedure almost always remains silent and dumb. They do not even speak a single word. All cross-examination and the suggestion to the witness is made by the defense counsel. Nobody says that this is case of defense counsel and this is not the case of accused persons. Everybody has got a right to consult his lawyer. If a witness goes to the lawyer before being produced in the Court, it cannot be said that he or she is tutored one. The State counsel also queries the witness to know whether the witness should be produced in the Court or not. No State Counsel can all of a sudden produce a witness in the Court without knowing what the witness is going to state. There cannot be any presumption that only because the witness met the D.G.C. he will give false statement. If the child witness Israna had not seen the occurrence and if she was not an eye-witness in the case, she has no reason to give names of the accused persons in her statement and also she has no reason to come to the Court. However, she has specifically stated that she has given statement on being asked for but she further stated that she has given the statement only what she had seen and she has not given any false statement. Whatever question was put to her, she correctly replied. If the witness had been tutored, she would have certainly given contradictory statement in her examination-in-chief or cross-examination. If the witness is truthful in admitting that she was brought by the police, she met the D.G.C. (Criminal), she will be deemed to be truthful in each and every respect. She has fully corroborated the prosecution story and is a fully believable witness.

P.W. 2, Matloob is also an eye-witness and he is also equally related to the accused. He was cutting grass in the plot of Alisher. It was argued that if he had got his own plots, why he was not cutting grass in his own plot. The grass is a common thing which can be cut in the plot of anybody. Nobody prohibits for cutting the grass because removal of grass is better for crops. It was the month of July when there was grass everywhere and everybody permits cutting of grass of his plot so that better crops may be grown. Therefore, if the eye witness was cutting grass in the plot of Anr. person, he is not to be disbelieved for that reason. This witness is also fully believable witness and he has also corroborated ''the prosecution story on all material aspects of the case.

Having found that all the three witnesses are believable witnesses, the entire prosecution story is proved. They have proved the weapons of assault as fire-arm. The injury of the victim was caused by fire-arm. The time has also been established. The F.l.R. is prompt one. There is nothing on the record to show that the F.I.R. is ante-timed or has been written in consultation and deliberation of the police. The place of occurrence is also fully established. The accused persons did not suggest that the occurrence took place at some Ors. place.

Learned Counsel for the Appellants advanced the following arguments. First is that the statement of Faiyaz deceased could not be read as dying declaration. The learned Sessions Judge has read it as dying declaration but we are fully agreed with the argument of the learned Counsel for the Appellants. According to the informant, Faiyaz remained at the police station only for ten minutes. As his condition was serious, he was sent to hospital. The doctor has stated, who initially examined the victim that the victim was in a fit condition to speak. The victim was serious likely to die. He died as a result of ante-mortem injuries. If he was able to speak, his dying declaration could have been recorded by some Magistrate but it has not been recorded. When the jaw has been fractured and broken and it was hanging out, no person can speak and there is a statement of the doctor, who conducted the postmortem of the victim that it was difficult for the victim to speak anything. We take doubtful that the victim was in a condition to speak and even if he was able to speak then also there should have been stammering in his statement but the statement as recorded by the Investigating Officer u/s 161, Code of Criminal Procedure prima facie shows that this is the repetition of the F.I.R. No victim can give such long statement in this condition. Therefore, we find it safe to ignore the statement of the victim recorded u/s 161. Code of Criminal Procedure Accordingly, we find that this cannot be read as dying declaration but still the clinching statements of all the three eye-witnesses fully prove the prosecution case, even this statement u/s 161, Code of Criminal Procedure of the victim is ignored.

The second argument of the learned Counsel for the Appellants was that Israna was a tutored witness. We have already held above that she had given statement out of her own and her statement is not to be disbelieved merely because she was brought by the police and she met the State counsel. When she came to the Court, she has given a natural statement and she is fully believable witness. The third argument of the learned Counsel for the Appellants was that the injuries are as a result of not only three shots but are the result of number of shots. P.W. 6, Dr. K.K. Yadav was not cross-examined whether the injuries are the result of three fires or more than that. Dr. A.K. Jain has specifically stated that the injuries could have been caused by more than one fire and may be also possible by four fires. This statement shows that injury is also possible by three fires.

The fourth argument of the learned Counsel for the Appellants was that if the victim was in a position to speak, he himself could have got the F.I.R. lodged. If the A. Cr.R. 3 victim was in a serious condition, the informant could have very well lodged the F.I.R. There is no illegality or irregularity in that rather this makes the presence of the informant at the place of occurrence natural and probable.

Lastly, it was argued that the presence of the witnesses at the place of occurrence is doubtful. We do not find any doubt in their presence at the spot. These three witnesses are fully believable and reliable witnesses.

We have examined the judgment recorded by the learned Sessions Judge and we are in full agreement with the reasoning and findings recorded by the learned Sessions Judge. We do not find any force in this appeal. The appeal is liable to be dismissed and is accordingly dismissed.

The accused persons are on bail. Their bonds are cancelled and the sureties are discharged. They shall be taken into custody forthwith to serve out the sentences, awarded to them by the learned Sessions Judge.

Send a copy of this order to the learned Chief Judicial Magistrate concerned to report compliance of this order to the Court within a period of three months.