Mohd. Mustafa and Another vs State of U.P.

Rakesh Tiwari, J.—These criminal appeals have been filed against the judgment and order dated 31.03.2002 passed by Additional Sessions Judge, Fast Track Court No. 2, Allahabad in S.T. No. 398 of 1988, State v. Ali Sardar and others, convicting and sentencing the appellants u/s 302 /34, IPC to undergo life imprisonment with fine of Rs. 2,000/- and u/s 307/34, IPC to undergo five years R.I. with fine of Rs. 1,000/-. It is further provided that in default of payment of fine appellants to undergo three months of R.I. Heard Ms. Amrita Rai, Amicus Curiae for the appellants and Sri Murlidhar Mishra and Aakash Mishra for the complainant and Sri R. A. Mishra, learned AGA for the State.

The facts relevant for disposal of the appeals are that accused persons Ali Sher s/o Sirajuddin, Mustafa s/o Ali Sher, Sagir alias Adalat Ali s/o Mustafa and Latif alias Munna s/o Mustafa on 20.05.1988 came with lethal weapons at the house of the complainant Mohd. Arif alias Jedu s/o Azizuddin, r/o village Chandravat, R.S. Mauaima at about 4.00 p.m. where he along with his brother Kudrat Ali and nephew Sharif were sitting. Ali Sher was having a Lathi, Mustafa was armed with double barrel gun, Sagir alias Adalat Ali and Latif alias Munna were armed with country made pistol (Tamancha). Due to earlier enmity with regard to landed property regarding which litigation was also in existence between them, on the exhortation of Sher Ali to kill them Mustafa and Latif started firing with country made pistol upon them with intention to kill. In the firing Mohd. Sharif s/o Kudrat died on the spot. The complainant and his brother Kudrat Ali were injured and on call for help by the complainant and the family members the assailants made their escape good towards south. The written report dated 20.05.1988 was accordingly submitted by the injured complainant to S.O. of P.S. Mauaima, District Allahabad which was 7 and a 1/2 kilometers from the place of incident. On the basis of written report, the case was registered in G.D. as case Crime No. 77/88, under sections 302, 307, IPC at P.S. Mauaima at 6.10 p.m. on 20.05.1988 itself against Ali Sher s/o Sirajuddin, Mustafa s/o Ali Sher, Sagir alias Adalat Ali s/o Mustafa and Latif alias Munna s/o Mustafa, All the resident of Chandravat, P.S. Mauaima, District Allahabad for committing murder of Mohd. Sharif s/o Kudrat Ali and making life attempt on Kudrat Ali and Mohd. Arif.

The investigation of the case was handed over to S.I. Ram Naresh Pandey. Recovery memo of Striker Gun, blood stained and simple earth was prepared on 21.05.1988 at the spot in presence of public witnesses. The injuries received by Sri Kudrat Ali s/o Ajijuddin are as follows:

Small round laceration 0.5 cm x 0.5 cm on right side of chest, 4 cm below right collar bone.

Small oral laceration 0.5 cm x 0.5 cm on the left side of face just infront of left ear at upper part.

Small round laceration 0.5 cm x 0.5 cm lower part of left nostril.

Swelling reddish. Blue on the right side eyelid both upper lower.

The injuries received by Mohd. Arif alias Jedu s/o Azizuddin are as follows:

Laceration 0.5 cm x 0.5 cm on left temporal region 2 cm x 2 cm. Swelling around the laceration. Advise- X-ray of left side of temporal.

Laceration 0.5 cm x 0.5 cm on the upper right side of lip.

Laceration 0.5 cm x 0.5 cm on the centre of chin.

Laceration 0.5 cm x 0.5 cm on the right upper on forearm and right palm. Advise- x-ray of hand.

The post-mortem of the body of the deceased Mohd. Sharif was conducted on 21.05.88 at 3.30 p.m. The doctor found following ante-mortem injuries were upon the body of the deceased:

Multiple rounded wounds of left side of back extending from scapular region to middle part of back and up to backward in the area of 8 inch x 7 inch, each measuring 2 cm in the diameter. Margins inverted no blackening and charring present, (wound of entry of fire arm).

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

Charges for the offence punishable u/Ss. 302 and 307 /34 IPC against accused Mustafa and u/Ss. 302 /34 & 307 /34, IPC against accused Sagir alias Adalat and Latif alias Munna were framed who pleaded not guilty and claimed trial.

In order to prove its case the prosecution had examined the complainant Mohd. Aarif PW-1, Kudrat Ali PW-2, Dr. H. S. Kashyap PW-3, Dr. Haribansh Rajju PW-4, Hera Ram PW-5, T.N. Pandey PW-6 and Lal Bahadur Singh PW-7. PW-1 and PW-2 are the injured eye-witnesses of the incident whereas PW-3 to PW-7 are only formal witnesses. All these accused in their statements u/s 313, Cr.P.C. again denied the entire prosecution story. However, they did not give any evidence in defence.

The appeal is filed before the Court on the grounds that impugned judgment and order dated 31.03.2003 passed by learned trial Court is against the weight of material evidence on record and as such bad in the eyes of law. It is stated on behalf of the appellants that trial Court had not taken into consideration the factum of motive as levelled against the appellants; that trial Court has also not taken into consideration the evidence of PW-2 Kudrat Ali who was chance witness and his presence was doubtful at the time of alleged incidence and that trial Court has misread and misconstrued the material evidence on record and has illegally and erroneously convicted and sentenced the appellants on the basis of surmises and conjectures. It is also stated that I.O. had not conducted the investigation in fair and proper manner as such the entire investigation was highly tainted and that prosecution has not produced the scriber of the FIR, so factum of FIR has not been proved, in spite of it learned trial Court has relied upon unproved documents for conviction of the accused.

Assailing the judgment dated 31.03.2003 Ms. Amrita Rai, Amicus Curiae for the appellants has argued that neither specific role has been assigned to any of the accused in the FIR nor any independent witness has been produced by the prosecution in support of its case and the case u/s 107 /116, Cr.P.C. between the parties had already concluded one and a half years back prior to the said incident. Referring to the injuries on the body of the deceased as well as by the injured witnesses it is submitted that a perusal of the same would show that they were all simple injuries except injury No. 4, therefore, conviction of the appellants u/s 302 read with section 34, IPC is highly disproportionate.

No other point has been argued.

Sri M. D. Mishra, learned counsel for the complainant submits that there was motive for the appellants to have committed the crime as there was property dispute between Sher Ali and Kudrat Ali who were real brothers. It is stated that the enmity is admitted by the accused Mustafa s/o Ali Sher in his statement u/s 313, Cr.P.C. There is no conflict between oral and medical evidence which is evident from the evidence of PW-1 Mohd. Arif and PW-2 Kudrat Ali as well as from the statement of PW-3 Dr. H.S. Kashyap and PW-4 Dr. Harbansh Rajju, who had conducted the medical examination of the injured witnesses and autopsy of deceased respectively. It is lastly submitted that perusal of inquest report and recovery memo of all articles, it cannot be said that FIR was ante timed.

Learned AGA for the State has argued that both the witnesses are injured eye-witnesses and was the nephew of the assailants. There has been no delay in lodging the FIR at the police station which is only seven and a half kilometers from the place of incident. Kudrat Ali PW-2 was taken on Charpai and he was medically examined between 7.20 to 7.30 p.m. by the doctor on the basis of Chithi Majrubi which mentions crime number and sections etc. for which the accused have been charged, as such it cannot be said that FIR was ante timed.

After hearing the counsel for the parties and on perusal of the record, the facts which are admitted to the parties are that Kudrat Ali and Mohd. Arif are real brothers. Accused Ali Sher is their real uncle and Mustafa accused is his son while accused Sagir and Mohd. Latif are sons of accused Mustafa. Deceased Mohd. Sharif is son of Kudrat Ali PW-2. There was a dispute between their families regarding partition of Bagicha and grove land for fodder of cattle. Admittedly also a case u/s 107 /116 Cr.P.C. had been concluded about half year for the said incident but the enmity and tension due to non-partition of the grove and grave-yard was still persisting as all other property have already settled between the parties. The injuries received by the injured witness might have been reported to be simple by doctor but considering the backdrop that Sharif s/o Kudrat Ali the nephew of the complainant was killed, and the injured witnesses have also sustained gun shot injuries they may be under impression that their injuries may also be grievous. They had no reason to believe otherwise. Immediately after the firing was over the assailants had run away and the injured witness Kudrat Ali was brought on a cot while the complainant Arif alias Jedu was taken to police station on a cycle. They had not come on any conveyance and had walked down seven and a half kilometers to the police station for lodging report. The injured were medically examined by doctor at 7.30 p.m. the same day. Therefore, it cannot be said that there is any delay in lodging the FIR or that the FIR has been ante timed.

The assailants belong to one family i.e. they were sons of Sher Ali who has been assigned the role of calling for killing Mohd. Sharif s/o Kudrat who were inside their house at the time of incident.

The ante-mortem injuries show that they were on the back of the deceased Mohd. Sharif, who had been shot while trying to run away and escape. He has died due to those injuries, therefore, it cannot rightly be said that injuries were simple in nature or that the accused had no intention to kill. One of the eyewitnesses has even lost his eye due to bullet shot. In the circumstances it cannot be said that assailants/accused had no motive. It is settled law that there are ocular witnesses much less injured witness to the motive pales into insignificant. It, therefore, cannot be said that learned trial Court has not taken into consideration the factum of motive as levelled against the appellants. It also cannot be said that evidence of PW-2 Kudrat Ali, who was a chance witness was doubtful. In fact he has received the injuries in the incident which is proved by the medical report also. Therefore, even if he is a chance witness it cannot be said that he was not present at the site of the incident. The trial Court has not mislead or misconstrued the material evidence on record convicting and sentencing the appellant. If allegedly the I.O. has not conducted the investigation meticulously, it cannot be said that he has not conducted it in fair and proper manner. It is evident from the investigation of the case that the Investigation Officer had taken care in his investigation and what were irregularities in the investigation have not been pointed out by the counsel for the appellants. A mere statement that investigation was improper and unfair which does not absolve the accused from their guilt.

For all the reasons stated above, we find that there was motive for the accused to commit the crime; that FIR was promptly lodged and injured were medically examined without delay; the presence of injured witnesses cannot be doubted at all; their testimony is cogent, clear and reliable; that the ocular evidence is fully corroborated by medical evidence. Thus the learned trial Court has rightly convicted the accused persons and proper sentence has been imposed on each of them. The appeals have no force and are accordingly dismissed. The conviction and sentence on each appellants is maintained.

Ms. Amrita Rai, Amicus Curiae be paid Rs. 2100/- as her fee within a month. Let certified copy of the judgment be transmitted to the Court concerned forthwith for compliance, which should be reported in two months.