Moh. Ibrahim and Another vs State of U.P.

Arvind K. Tripathi, J.—The Criminal Appeal (Capital Case) No. 5505/10 has-been filed on behalf of Mohd. Ibrahim s/o Mohd. Shafiq and Naseem Ahmads/o Mohd. Ibrahim. Criminal Appeal (Capital Case) No. 5219/10 has been filed by Sajjad Husain, Aftab, Karar Husan and Fasad Husain, all sonsof Zameer Ahmad in S.T. No. 575 of 2000 u/s 147, 148 and 302/149, I.P.C.P.S.. Dhampur, district Bijnor arising out of Case Crime No. 359 of 2000 connected with S.T. No. 576/2000, State v. Fasad Husain, u/s 25 of the Arms Act, P.S. Dhampur district Bijnorin Case Crime No. 404/2000, S.T. No. 578/2000, State v. Naseem, u/s 25, Arms Act, P.S. Dhampur, district Bijnor in Case Crime No. 402/2000. These criminal appeals have been preferred against the judgment and order of conviction dated 30.7.2010 awarding death sentence to all the accused- Appellants for the offence u/s 302/149, I.P.C. They were also convicted and sentenced u/s 147, I.P.C. to undergo one year''s R.I. and u/s 148, I.P.C.for three years'' R.I. However, they were acquitted u/s 120B, I.P.C. Accused-Appellants Naseem Husain and Fasad Husain were acquitted u/s 25, Arms Act. All the three Sessions Trials were decided by a single judgment and order. There is No. appeal against the order of acquittal. Reference No. 9 of 2010 is for confirmation of death sentence as provided u/s 366, Cr. P.C. These two appeals and reference are being decided jointly by this order.

Shri P.N. Mishra, learned senior counsel assisted by Shri I.M. Khan, appeared for the Appellants, Shri D.R. Chaudhary, learned Government Advocate for State and Shri Gaurav Kakkar, learned advocate appearing for the complainant.

Heard counsel for the parties and perused the record.

In brief the prosecution case is that the informant Sabir Husain lodged a written report at the Police Station Dhampur with the allegation that on 28.5.2000 at about 5.45 p.m. when his brother Umbra Hussein was returning from the Nehtaur Market and reached in front of the house of Sharafat Husain s/o Mohd. Shafi on kharanja road, the accused Mohd. Ibrahim, Naseem, Sharif Ahmad, Aizaz Husain, SajjadHusain, Aftab Husain, Karar Husain, Fasad Husain and Zakir of hisvillage surrounded his brother Mubarak Husain. Naseem and Sharif Ahmadwere armed with country made pistols, Sajjad Husain was having licensedgun and they fired indiscriminately at Mubarak Husain. Mubarak Husainfell down on the earth. Mohd. Ibrahim attacked by pharsa. His brother Mubarak died on the spot. When his son Shah Alam came for rescue of hisbrother Mubarak Husain, the accused Aizaz Husain, Aftab Husain, SajjadHusain, Karar Husain, Fasad Husain and Zakir fired on Shah Alam bytheir guns and country made pistols and Sajjad fired with a licensedgun causing injuries to him. Showing country made pistols, they shoutedwhether there was any one who would dare to come before them. After hearing firing a stampede took place and terror was created. Villagers Sharafat Husain, Akram Husain, Mohd. Shafi and Dilshad dared to come there and they challenged the accused persons, then the accused persons went away from the spot. Thereafter, the injured Shah Alam was taken tothe hospital where he was declared dead. Then written report was submitted and the case was registered at Police Station Dhampur at 7.20 p.m. bearing Case Crime No. 359/2000. The investigation was taken up by S.H.O. Shri v. K. Verma and he inspected the spot and prepared site plan and the dead body of Shah Alam and Mumbarak Husain were taken into custody by the police. The inquest report of the dead body of Mubarak Husain was prepared by S.I. Maha Singh and Inquest report of the dead body of the Shah Alam was prepared by S.I. Nand Kishore on 25.8.2000.The dead bodies were sealed and the same were sent to the District Hospital for post-mortem examination alongwith the necessary papers.

Postmortem was conducted at the District Hospital at Bijnor on 26.8.2000 on the dead body of Mubarak Husain at 12.25 p.m. and on the dead body of Shah Alam at 1.30 p.m. The doctor found five firearm entry wounds. One firearm exit wound and one abrasion on the body of Mubarak Husain. The ante-mortem injuries on the dead body of Mubarak Hussain are as follows:

1 Firearm wound of entry 2 cm. x 2 cm. x through and through (communicated/with injury No.2) in right face, 1 cm. below and away from angle of mouth. Blackening present over area of 5 cm. x 5 cm.around wound.

Firearm wound of exit 10 cm. x 13 cm. (on left face) through and through communicated with injury No. 1 Maxilla upper jaw, base of skull and zygomatic bone (bone of left lower orbit) and left frontal bone got fractured. Brain lacerated.

Firearm wound of entry 3 cm. x 3 cm. x muscle deep on back of left side neck. 3.5 cm. away and behind from base of left ear and bullet recovered from the wound. Blackening over area of5 cm. x 5 cm. around wound present.

Firearm wound of entry 3 cm. x 2 cm. x cavity deep on left anterior axillary''s fold 13 cm. Above nipple at one O''clock position directed down. On exposure left second rib found fractured left lung got lacerated, diaphragm ruptured, about one litre blood in chest cavity. Two ticklies and 71 pellets recovered from chest cavity and left lung tissue.

Firearm wound of entry on back of left chest 3 cm. x 3 cm. x cavity deep, directed obliquely forward causing fracture 5th rib left side and laceration of left lung diaphragm and rupture of liver. One bullet recovered from liver tissue.

Firearm wound of entry 2.5 cm. x 2.5 cm. x cavity deep on left abdomen 12 cm. away from umbilicus (lain placing over area of 6 x 6 cm. around wound) at 3 O''clock position. On exposure 1-1/2 liter blood found in abdomen cavity, Bullet recovered in abdominal cavity.

Small Intestine got ruptured.

Abrasion 2 cm. x 1 cm. surrounded by multiple tattoo marks over area of 10 cm. x 12 cm. on right side lower part 10 cm. above knee joint.

The doctor found following ante-mortem injuries on the body of Shah Alam:

1 Firearm wound of entry 0.5 cm. x 0.5 cm. x cavity deep (through and through) on right chest 3 cm. above nipple in between 3rd and 4th inter costal space at 1 O''clock position. No. blackening, No. tattooing, edges lacerated and inverted.

Firearm wound of exit 1.5 cm. x 1.5 cm. x through and through communicated with injury No. 1 on back of right chest, 8 cm. away from mid line and 3 cm. below lower border of scapula having fracture of 4th and 5th ribs. No. blackening, No. tattooing, edges lacerated and everted. About one litre blood found in chest cavity.

Abrasion 3 cm. x 1 cm. on right upper arm present 7 cm. above elbow joint.

Multiple pinhead size to pin point tattoo marks scattered all over back of right forearm and upper arm.

Two abrasion on front of right size 1.5 cm. x 0.5 cm., 1 cm. x 1 cm, 1 cm, apart 13 cm. above ankle joint.

There was one firearm entry wound, one firearm exit wound and three abrasions. Doctor also found multiple tattooing marks on the body of the deceased Mubarak Husain in the area 8 cm. x 2 cm. right which is 7cm. below nipple at 8 O''clock.

The cause of death was reported due to shock and haemorrhage as result of ante-mortem injuries.

After transfer of the S.H.O., the investigation was taken up by S.S.I.D.P. Singh. He along with constable Maha Singh made a recovery of country made pistol of 315 bore on the pointing of accused Naseem and

Sharif, near Mango Tree situated in the grove at village Tibri. Therecovery memo was prepared in presence of the witnesses and the copy was given to the accused Naseem and Sharif on 29.9.2000. There was recovery of the country made pistol of 315 bore in the jungle of the village Tibri on the pointing of the accused Fasad Husain also by S.S.I.D. P. Singh. The recovery memo was prepared in presence of the witnesses and copy of the same was given to the accused Fasad Husain.They were challanned u/s 25, Arms Act and the cases were registered as Case Crime No. 402/2000 against co-accused Naseem, Case Crime No. 402/2000, against Sharif and against Fasad Husain Case Crime N0.404/2000. The case was investigated by the second S.I. Srinivas Pathak after obtaining sanction on 13.10.2000 from the District Magistrate to prosecute the accused persons, the charge-sheets were submitted against them separately u/s 25 of the Arms Act. The second Investigating Officer S.S.I.D. P. Singh recorded the statement of the witnesses and after completing the investigation the charge sheet was submitted against all the nine accused persons under Sections 147, 148, 149, 307, 302, 120B, I.P.C. However, during pendency of the case, co-accused Zakir and Aizaz died, hence their case was abated. One of the accused Sharif was absconding, hence his case was separated. Remaining six accused Appellants were convicted and sentenced u/s 302/149, I.P.C. for capital punishment and the matter was referred for confirmation of death sentence awarded to them.

The prosecution has examined P.W. 1 Sabir Ahmad, P.W. 2 Sharafat Husain, the scribe of the first information report, P.W. 3 constable Virendra Mishra who conducted the panchayatnama along with the A.S.I.Nand Kishore, P.W. 4 Dilshad, P.W. 5 Akram, P.W. 6 Mohd, Shafi, P.W. 7Dr. G.P. Dabkara who conducted the post-mortem examination, P.W. 8 H.C.P. Mahavir Singh who prepared chick report u/s 25, ArmsAct on the report of S.S.I., Dhampur, P.W. 9 S.S.I.D. P. Singh, who after transfer of the S.H.O. v. K. Sharma took the investigation. P.W.10 S.H.O. v. K. Sharma who was first Investigating Officer, P.W. 11retired S.I. Maha Singh who conducted the panchayatnama on the direction of the then S.H.O. v. K. Sharma, P.W. 12 Sanjay Kumar Katiyan, advocate who has proved the affidavit before the court below.

When the statement of the accused persons were recorded u/s 313, Cr. P.C. they denied the prosecution story and stated that they were falsely implicated due to enmity and partybandi, The defence of accused Sajjad Husain was that his licensed gun was already deposited at M/s. Harpal Singh, Arms Dealer, Dhampur, hence it was incorrect today that the same was used in the incident.

In defence from the side of the accused persons D.W. 1 Bhupendra Singh, D.W. 2 Man Singh, Tehsildar, Dhampur to prove the alibi of the accused Aizaz Husain, D.W. 3 Ashok Kumar, Sahakari Kurk Amin, D.W. 4Ashok Kumar Verma, Nayab Nazir, Tehsil, Dhampur were examined.

After consideration and scrutiny of the evidence on record, the trialcourt found that the prosecution has proved its case regarding murder of Mubarak Husain and Shah Alam. It was held by the trial court thatall the accused persons committed murder of both the aforesaid deceased persons, in furtherance of ''common object of the unlawful assembly of the accused persons who were armed with deadly weapons like gun and pistol. Hence, they were held guilty and convicted under Sections 147, 148, 302, 149, I.P.C. However, they were not found guilty of the charge u/s 120B, I.P.C. Hence, they were acquitted of the aforesaid charge.

The accused Naseem and Fasad Husain were not found guilty of the charge u/s 25 of the Arms Act and they both were acquitted. Against the order of acquittal No. appeal has been filed either by testate or complainant.

The counsel for the Appellant submitted that P.W. 1, informant wasn''t reliable and only on the basis of his evidence the Appellants we reconvicted and death sentence was awarded though the other witnesses

have become hostile. Since there was enmity in between the parties, hence there was chance of false implication and it appears that No. one has seen the incident. It was stated by P.W. 1 that accused Ibrahim attacked with pharsa. However, that statement is inconsistent with the medical evidence because injury of pharsa was not found in the post-mortem examination. The plea of alibi was raised on behalf of accused Aizaz, who on the date of incident was in civil imprisonment at Tehsil, Dhampur though he is dead, hence the trial abated against him. Hefurther submitted that there was allegation of firing by all the accused on the deceased Shah Alam. However, only one firearm injury was found on the person of deceased Shah Alam, hence considering the discrepancy in the evidence and inconsistency with the medical report the evidence of eye-witness P.W. 1 was also not reliable. There was no motive for committing murder. The Appellants were convicted against the evidence on record, hence the judgment of conviction and sentence is liable to be set aside and the accused-Appellants are liable to be acquitted. In alternate he further submitted that at least it is not abase covered in the category of rarest of rare cases for capital punishment and a very harsh view was taken by the trial court in awarding the death sentence.

Counsel for the State of U.P. submitted that under threat and pressure the witnesses become hostile though they had supported the prosecution case before the Investigating Officer and filed affidavits before the Magistrate. However, P.W. 1 has fully supported the prosecution case. There is No. inconsistency or discrepancy barring anew minor discrepancies which are natural and will not affect the prosecution case. Conviction and sentence has rightly been awarded in view of the organized act of the Appellants.

P.W. 1 Shabbir Ahmad is the informant who lodged the first information report. According to his statement his brother deceased Mubarak Husain was earlier Up-pradhan and Zamir, father of the accuse dAizaz Husain, Sajjad Husain, Aftab Husain, Fasad Husain was Pradhan ofthe village. Zamir was killed, hence Mubarak Husain got the charge of the Pradhan and there was suspicion in the minds of the accused-Appellants that the deceased Mubarak might have been behind the murder of Zamir for taking charge as Pradhan. Thereafter, in the next election Mubarak Husain was elected as village Pradhan who had defeated the wife of Aizaz, hence the accused persons had enmity with his brother Mubarak. The accused persons belong to one family and one party. He further stated that two and a half years before this incident, nomad. Yusuf alias Gabbar was murdered who was the real brother of the accused Ibrahim. In that case P.W. 1 Shabbir and the deceased Mumbarak were named as accused in the first information report. However, since no material was available in support of the first information report against them, hence a final report was submitted by the Investigating Officer. Hence, in view of the fact there was strong motive for murder of Mubarak. P.W. 1 further stated that when on 25.8.2000 his brother Mubarak Husain was returning from Nahtaur Bazar and reached in front of the house of Sharif by his scooter at 5.45 p.m. then the accused-Appellants and co-accused Aizaz, Zakir and Sharif armed with gun and country made pistols surrounded his brother Mubarak Husain and fired at him. Accused Ibrahim attacked with pharsa and Mubarak died on the spot. When for rescue of Mubarak Husain, his son Shah Alam came there, then the accused persons also fired at Shah Alam who got serious injuries. He has supported the version of the first information report. Shah Alam was taken to the hospital but on the way he succumbed to his injuries

in the compound of the hospital before he was admitted. Thereafter, he got the first information report written by Sharif Husain and the same was submitted at Police Station Dhampur. The first information report was proved by him as Ext. Ka-1.

P.W. 1 has also stated that a complaint was made to the District Magistrate against Tehsildar, Dhampur who had shown the false imprisonment of accused Aizaz Ahmad in Tehsil, Dhampur on the date of the incident, i.e., 25.8.2000. The inconsistency in the statement of P.W. 1 and post-mortem examination report was pointed out to the extent that there was No. injury of pharsa. Apart from that No. material contradiction or inconsistency and in discrepancy in the statement was pointed out in the statement of P.W. 1. There are few minor discrepancies which are natural after a lapse of the time as a normal error which are immaterial. It was observed by Hon. Supreme Court incase of State of Uttar Pradesh v. Devendra, JT 2004 (1) SC 186:2004 (2) ACR 1955 (SC) , that material discrepancies are those which aren''t expected from a normal person. In case of Rammi @ Rameshwar etc. Vs. State of Madhya Pradesh, 1999 (3) ACR 2183 (SC), it was observed by the Apex Court that when ocular witnesses are examined at length it was quite possible for them to make some discrepancies. Notrue witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But too serious a view to be adopted at mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between or as between two statements of the same witness is an unrealistic approach for judicial scrutiny.

So far as inconsistency with the medical report and the statement of P.W. 1 is concerned it was neither mentioned in the first information report nor in the statement of the P.W. 1 that the accused assaulted with phrase causing injuries. Even in the panchayatnama injuries weren''t mentioned as caused by phrase. In cross-examination he has stated that he could not say whether the phrase hit Mubarak Husain or not. Apart from that it is well-settled that the ocular witness has not tube disbelieved if he is reliable, merely on ground of inconsistency with medical report.

There is a prompt first information report in the present case. Casper the statement of P.W. 1, he was present at the shop of Rahat Husain where he went for purchasing sugar. At the crossing the shop was near the house of Sharafat Husain. According to the site plan Ext. Ka-28,the house of Rahat Husain is in front of the house of Shrift Husain and the incident took place in front of the house of Shrift Husain,hence there were chances to witness the incident by P.W. 1.

So far as the injuries of the deceased Shah Alam is concerned, there was only one firearm injury and it was pointed out that the allegation was against all the accused of firing on Shah Alam who were armed with gun and country made pistol.

From a perusal of the first information report and the statement its not disputed that there was No. averment either in the first information report or in the statement that the fire by all the accused or some of the accused hit the deceased Shah Alam. If the other fire missed and only one hit Shah Alam merely on this ground and on the basis of the medical evidence the statement of P.W. 1 could not be disbelieved if otherwise the statement is reliable. His presence is not

doubtful and there was natural conduct of P.W. 1 that immediately after the incident with support of other persons he firstly rushed to the police Station and thereafter on the advise of the police he went tithe hospital considering the serious condition of Shah Alam. The incident took place at 5.45 p.m. and the first information report was lodged after death of Shah Alam at 7.20 p.m.

Since the enmity is a double edged weapon, hence while considering the enmity, surrounding circumstances have to be considered. In the present case, it is the specific case of the prosecution that there was doubt in the mind of the accused opposite parties that the deceasedMubarak Husain was instrumental in the murder of Zamir Ahmad because after his death the deceased Mubarak Husain, who was Up-pradhan, got the charge of the Pradhan. Thereafter, Khatoon Begum, the wife of the deceased was elected as Pradhan. After that the deceased Mubarak defeated Smt. Nisat Parveen, wife of Aizaz Ahmad. Apart from that two and a half years before the incident Gabbar alias Mohd. Yusuf was killed, who was the real brother of accused Ibrahim. In that case deceased Mubarak Husain and P.W. 1, Sabbir Ahmad were named. However, after investigation their complicity was not found, hence a final report was submitted. There was strong motive for committing the offence. The other witnesses were declared hostile due to pressure and threat. Hence, even if, there was one reliable witness the accused cane convicted in the present case. However, it is well- settled that the part of the statement of the hostile witnesses can also be recorded upon which is supporting the prosecution version.

In the present case, P.W. 2 Sharafat is the scribe of the first information report. He was also declared hostile. Before starting the statement, the affidavit dated 28.10.2000 was shown to him. Photo and his signature were attested on the affidavit. It was also accepted that the affidavit along with an application was given by him before the Chief Judicial Magistrate. In that affidavit the prosecution case was supported. The application and affidavit were Ext. Ka-2 and Ext. Ka-3. All the accused opposite parties were present before the Court to whom he identified and they were known to him. He stated that Mubarak Hosanna Shah Alam were murdered on 25.8.2000 at about 5.45 p.m. in front of his house. He further stated that when he reached on the spot, the murder has already been committed and he had not seen the incident, hence he was declared hostile. Thereafter, he was cross-examined by A.D.G.C. In cross-examination he has admitted that the first information report which was Ext. Ka-1 was written by him. He further replied in cross-examination that it was rightly written in Ext. Ka-1that on 25.8.2000 at about 5.45 p.m. in front of his house the accused Respondents along with the other co-accused Zakir, Aizaz and Sharafat assaulted Shah Alam with country made pistol and pharsa. Whatever was mentioned in Ext. Ka-2 regarding the incident the same statement was given before the Investigating Officer, when he was interrogated? This fact shows that during cross-examination he has admitted that the first information report and the affidavit were correct and same statement was given before the Investigating Officer also. He further stated whence was cross-examined on behalf of the co-accused Aizaz Ahmad, Aftab,Karar Husain and Fasad Husain that after murder the Appellants called him at police Station, Dhampur. It was incorrect that he had written the report as suggested by the police. The correct fact was that whatever was stated by Saber that was written. He went to the district court, since he was asked by the informant Sabir, hence he signed on those papers Ext. Ka.2 and Ext. K-3 in district court at Bijnor. Hence, in view of the statement of P.W. 2 who was scribe of the first information report though he was declared hostile but he has supported the prosecution version. The other witnesses have also filed an affidavit before the court of Chief Judicial Magistrate. However, in their statement they have denied their presence at the time of incident. P.W. 5 Akaram was also declared hostile. However, in cross examination he has stated that he had seen the dead body of Mubarak Husain and scooter on the spot. He had also seen Shah Alam on the spot from where he was taken to the Police Station, Dhampur. He further stated that it was incorrect to say that he had not seen the dead body of Mubarak and Shah Alam on the spot.

P.W. 7 Dr. G.P. Dabkara, District Hospital, Bareilly was examinedwho has conducted the post-mortem examination. He has proved and supported the post-mortem examination report of Mubarak Husain and ShahAlam and blackening was also found on the person of deceased Shah Alam.There were five firearms entry wound caused to the deceased Mubarak on the face behind the ear, chest and abdomen. There was one abrasion on the thigh. Second and fifth ribs were found fractured. Left lung was lacerated and diaphragm was ruptured Maxilla, upper jaw base of skull, zygamatic bone, left frontal bone were fractured. Brain was lacerated. Two tickles, 71 pellets and bullets were recovered from inside the body of the deceased Mubarak. Death was caused due to shock and haemorrhage as a result of ante-mortem injuries. There was only one firearm injury on the chest of deceased Shah Alam. Fourth and fifth ribs were fractured. Apart from that there was abrasion on the other parts of the body. Cause of death was due to shock and hemorrhage as result of ante-mortem injuries. Post-mortem was conducted on both the bodies on 26.8.2000. The affidavit filed by the witnesses supporting the prosecution case were proved by P.W. 12 Sanjay Kumar Katiyan, advocate, Civil Court, Bijnor.

In the statement u/s 313, Cr. P.C. the defence was that the accused-Respondents were falsely implicated due to enmity and party-bandi.

In view of the aforesaid fact and discussion as above, the prosecution has proved its case beyond reasonable doubt, hence accusedAppellants were rightly convicted.

The appeal of Mohd. Ibrahim s/o Mohd. Shafiq and Naseem Ahmad s/o Mohd. Ibrahim and the appeal of Sajjad, Aftab, Karar Husain and FasadHusain are devoid of merit and are dismissed, maintaining the conviction under Sections 147, 148 and 302/149, I.P.C. The acquittal u/s 120B, I.P.C. was not challenged either by the State or byte complainant.

So far as death awarded by the trial court is concerned though it is case of murder of two persons and it is the case of both the parties that there was enmity in between the parties. According to the Apex Court, life imprisonment is the rule and death sentence is an exception. The death penalty is extreme penalty in gravest cases of extreme culpability. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having relevant circumstances of the crime. In rarest of rare cases and when the collective conscience of the community has been shocked, death sentence can be awarded. In the present case, there was enmity with the deceased Mubarak Husain who was done to death and so far as the deceased Shah Alam is concerned, when he came on the spot for rescue of Mubarak Husain they fired causing firearm injuries. Subsequently he also succumbed to his injuries. The circumstances show that the eye witnesses have supported the prosecution version in their statement u/s 161, Cr. P.C. and also filed an affidavit before the Magistrate but it appears that there was pressure from the side of the accused, hence they became hostile. Only P.W. 1 informant has supported the prosecution case. The other eye-witnesses became hostile. P.W. 2 Sharafat Husain who was scribe of the first information report was also declared hostile but in his statement and cross-examination he has also supported writing the F.I.R. and the correctness of the contents of the first information report and the affidavit filed before the Chief Judicial Magistrate, hence otherwise he has also supported the prosecution version. However, the present case is not in the category of the rarest of rare cases in which capital punishment has to be awarded.

In view of the above discussion both the appeals are hereby partlyallowed. Conviction confirmed. Sentence under Sections 147 and 148, I.P.C for one year''s R.I and three years'' R.I. are affirmed. However, capital punishment is not approved. The death sentence is converted to life imprisonment. All the accused-Appellants with the aid of Section 149, I.P.C. are convicted u/s 302, I.P.C. and sentenced to undergo life imprisonment with fine of Rule 20,000 each, and in default of payment of fine they have to undergo further two years imprisonment.