Mohd. Zeeshan and Others vs State of U.P.

Surya Prasad, J.—This is a criminal appeal against the judgment and order dated 4th August, 1978 passed by the then learned Vth Additional Sessions Judge, Moradabad, in Sessions Trial No. 183 of 1978 (State v. Mohd. Zeeshan and Ors.) whereby he acquitted the accused Irfan of all the charges levelled against him, but convicted the Appellants-accused Mohd. Zeeshan under Sections 302, I.P.C, 324, I.P.C. and 232 read with Section 34. I.P.C. and convicted him to imprisonment for life, two years rigorous imprisonment and to fine of Rs. 1000 respectively thereunder and in default to pay the fine to undergo rigorous imprisonment for one month. He directed that the sentences under Sections 302 and 324, I.P.C. shall run concurrently. He convicted the Appellant No. 2 Mohd. Furqan u/s 323, I.P.C. and sentenced him to a fine of Rs. 1000 and in default of payment of fine to undergo imprisonment for one month and convicted the Appellant-accused No. 3 Margoob u/s 25 of the Arms Act and sentenced him to imprisonment for 3 months and a fine of Rs. 1000 under Sections 323/34, I.P.C. and in default of payment of fine to undergo rigorous imprisonment for one month.

The prosecution case briefly stated is that the informant Mohd. Rizwan (P.W. 1) is a resident of Mohalla Kisrauli Baradari, police station Kotwali, district Moradabad. There was litigation going on between the informant Mohd. Rizvan and certain others, on one side and the accused Mohd. Zeeshan and others, on the other. Consequently Mohd. Zeeshan and others bore grudge against them. Mohd. Zeeshan and Irfan had beaten him in the past. Consequently he (Mohd. Rizvan) lodged a report with the police station. It is alleged that on 13th December, 1977 at about 10 a.m. Mohd. Rizvan was sitting at the main door of his house and that Mohd. Zeeshan, Mohd. Furqan and Irfan Khan resident of Mohalla Baradari Margoob, resident of Mohalla Bara Shahsafa came there. Mohd. Furqan had a Danda in his hand. Seeing Mohd. Rizvan, the accused Mohd. Zeeshan abused him, exhorted others to kill him and expressed that he (Mohd. Rizvan) was very litigious. Consequently the accused Furqan started beating him with the Danda. He raised alarm, hearing which his (Rizvan''s) brother Mohd. Toran alias Gora happened to come out of the house, Hadi Hasan, son of Mehdi Hasan, resident of Mohalla Pheelkhan, Mohammad Ali Road, Akhtar Husain and Dilyad Husain, residents of Mohalla Baradari and certain others also reached there, Mohd. Zeeshan whipped out a knife and caused a knife injury at the abdomen of Mohd. Toran. Mashqoor rushed to save Mohd. Toran and started catching hold of Zeeshan. In the meantime Zeeshan assaulted with the knife at the neck of Mashqoor. Having received Injuries Mohd. Toran and Mashqoor both fell down. Mohd. Rizvan and others tried to apprehend them. In the meantime, Margoob fired from a country made pistol. But the fire shot got missed. They started running away. But Mohd. Rizvan and others apprehended Margoob with country made pistol and Mohd. Furqan with Danda. Mohd. Zeeshan and Irfan fled away. The condition of Mohd. Toran and Mashqoor was critical and therefore, they were sent to the hospital.

Dr. D.P. Bahuguna (P.W. 4) medically examined Mohd. Toran on 13th December, 1977 at 10.30 a.m. and found an incised wound 10 cm x 4 cm x abdomen cavity deep on the left side abdomen 4 cm. He prepared the injury report Ext. K-5 in respect of the same. Dr. Bahuguna also medically examined Mashqoor Ahmad at 10.35 a.m. and found lacerated wound 4 cm. x 1 cm depth not probed on the left side neck outer part 3.5 cm below outer to the chin. He prepared the injury report Ex. Ka-6 in respect of the same. Mohd. Furqan and Margoob were taken to the police station with the country made pistol and Danda snatched away respectively from them. Mohd. Rizvan (P.W. 1) made an oral report at the police station about the incident. On that basis the then head constable Jagdamba Prasad (P.W. 8) prepared a chick report and ultimately registered a case against the accused. On 13th December, 1977 at 12.05 p.m. the then Executive Magistrate, M.S. Raizada (P.W. 6) had recorded the dying declaration Ext. Ka-4 of Mohd. Toran, who ultimately died on 16th December, 1977 in the hospital. The then sub-Inspector Hari Singh held inquest on the dead body of Mohd. Toran and prepared the inquest report Ext. Ka-18. He observed the necessary formalities in connection therewith. He seized, sealed and sent the dead body of Mohd. Toran through constable Chandrapal (P.W. 10) and constable Gajraj Saran to the mortuary for post mortem examination.

Dr. D. Mishra (P.W. 2) conducted the post-mortem examination on the dead body of Mohd. Toran on that day at 2 p.m. and found the following ante-mortem injuries thereon.

Stitched surgical wound 5" x 1/4" x abdominal cavity deep over the left side of upper portion of abdomen 1 1/2" below the costal margins, oblique. The abdominal cavity contained about 1/2 point of blood. The left end of transverse colour was stitched all round in four layers. The pancens was cut under the injury which was also stitched. The left branoth of left middle colice artillery was tied and the posterior peritoneum was stitched under the injury. The peritoneum was thick and oedemature.

Stitched surgical would 6" x 1/4" x abdominal cavity deep in the left upper paramedian region.

Stitched wound, margins clear out 2" x 1/2" x muscle deep over the back of left side chest lower part 3" above the coastal margins.

Stitched wound margins clear cut 2" x 1/2" muscle deep over the outer aspect of left thigh on the upper one third.

Stitched surgical wounds each 1" x 1/4" x muscle deep over the medical aspect or both ankle joints just in front of the medical mallealus.

Abrasion 1/2" x 1/2" over the back of right elbow.

Abrasion 3" x 1/10" ove the back of right forearm lower two third.

Multiple abrasion ranging from 1/2" x 1/4" to 1/10" x 1/10" over the front of right leg upper one third in an area of 4" x 3".

On internal examination the medical officer found that the stomach was empty, small intestines were empty and the large intestines contained faecal matter, internal organs were either normal or pale. The medical officer opined that the death had been caused due to haemorrhage and shock as a result of injury No. 1. He also stated that injury No. 1 had been caused with considerable force and in the ordinary course of nature was sufficient to cause death.

After the registration of the case it was entrusted to the then sub-Inspector Dalbir Singh (P.W. 12) who visited the place of occurrence and took down the statements of the informant Mohd. Rizvan and Hadi Hasan. He inspected the place of occurrence and prepared its site plan Ext. Ka-24 on the receipt of the post-mortem report and after the completion of the investigation into the case he submitted the charge-sheet, Ext. Ka-25, against the accused. He further submitted a separate charge-sheet Ext. Ka-26 against the accused Margoob u/s 25 of the Arms Act, after obtaining sanction Ext. Ka-27.

The prosecution examined the informant Mohd. Rizvan (P.W. 1), Dr. D. Mishra (P.W. 2), Hadi Hasan (P.W. 3), Dr. D.P. Bahuguna (P.W. 4), Mashqoor Ahmad (P.W. 5), M.S. Raizada (P.W. 6), Mohd. Islam (P.W. 7), Jagdamba Prasad (P.W. 8), Sharifuddin (P.W. 9), Chandrapal (P.W. 10), Hari Singh (P.W. 11) and Dalbir Singh (P.W. 12) and relied upon certain documents in support of its case.

The accused pleaded not guilty. They have stated that all the allegations levelled against them are wholly wrong and incorrect. They have pleaded their ignorance about many of the facts relating to the case. They have further stated that the witnesses had deposed against them on account of enmity. The accused Mohd. Zeeshan has further stated that he and Mashqoor were talking to each other in front of the house of Mashqoor, when Ikram and Toran attacked him with lathi and knife, respectively, Toran assaulted Mashqoor with a knife. Mashqoor had come to save him. Thereafter Toran was to assault him with a knife. Consequently in order to save himself and Mashqoor, he whipped out a knife and assaulted Toran with it. The accused Margoob has further stated that the sub-Inspector Dalbir Singh has got him falsely implicated in this case, as there arose some quarrel between him and the sub-Inspector. The accused Furqan has stated the same thing as has been stated by the accused Mohd. Zeeshan.

The accused have examined Dr. V.R. Singh (D.W. 1), Mehdi Hasan, (D.W. 2), Vijay Kumar Sinha (D.W. 3), Balram Singh (D.W. 4) and Habibul Rehman (D.W. 5) and relied upon certain documents in support of their contentions.

Having heard learned Counsel for the parties and having considered the evidence on the record, the learned Additional Sessions Judge, Moradabad, convicted and sentenced the Appellants-accused through his impugned judgment and order, as mentioned above. Aggrieved, they preferred this appeal against the same.

We have heard the learned Counsel for the parties and have perused the evidence on the record.

The informant Mohd. Rizvan (P.W. 1), Mohd. Toran alias Gora, deceased, accused Mohd. Zeeshan and Mohd. Furqan and certain others are closely related to one another. There were litigations between them in respect of certain properties. These facts are not in dispute, on the basis of the evidence on the record.

Mashqoor (P.W. 6} is an injured witness. He was declared hostile at the instance of the learned Counsel for the prosecution. Consequently the learned Counsel for the prosecution cross-examined him. But he could not be able to elicit anything favourable to the prosecution case in his cross-examination. He has categorically stated that he was talking to Zeeshan in front of his house that Ikram Ahmed with Lathi reached there and assaulted Zeeshan with lathi that he tried to save him, with the result that Toran caused knife injury to him (Mashqoor) that Ikram then holding knife was to cause knife injury to Zeeshan that in order to save himself and him (Mashqoor) Zeeshan caused knife injury to Toran deceased that thereafter Furqan, brother of Zeeshan came out and that Suleman, Rizvan and Ikram assaulted him with lathis with the result that Furqan received lathi injuries. He has denied that Furqan assaulted Rizwan with Danda. He has stated that it is wrong to say that he (Zeeshan) was assaulting Toran with knife and that he intervened and then Zeeshan caused injury on his (Mashqoor) neck. He has further categorically stated that Zeeshan and Furqan received lathi injuries that he and Toran received knife injuries and that none else received any lathi, knife, or pistol injury. He has further stated that Zeeshan caused injury to Toran only after he (Mashqoor) had received knife injury. The accused Mashqoor was not at all present on the spot. Toran deceased. Rizvan and certain others belong to one and the same family. If the accused are suggested to be affluent and influential the informant and others can also be said to be so. Mashqoor (P.W. 5) cannot be said to have been under the influence of any of them. Everyone, whether rich or poor has got his own reliability and respectability. Truth appears to have impelled and inspired Mashqoor (P.W. 5) to tell the truth truthfully. He has battered and shattered the prosecution case on them arterial points and strengthened the defence case. There is no reason to discredit his testimony.

The informant Rizwan (P.W. 1) has admitted that he has filed an affidavit in the Court of the Chief Judicial Magistrate, Moradabad. He did not remember whether Irfan and Furqan had caught hold of Toran, in the course of the incident or not. He did not mention anything as such in the first information report, not did he tell anything to this effect to the Investigating Officer. He has denied that he had got written in the affidavit that Irfan and Furqan had caught hold of Toran. In the same continuation he has further stated that the Advocate concerned had written this thing of his own accord in the affidavit. Rizvan (P.W. 1) has taken summersault. He has no regard for truth. He has filed affidavit against what has been mentioned in the first information report. Not only this, but he has also made improvements over what has been stated by him u/s 161 of the Code of Criminal Procedure.

The site plan Ext. Ka-22 shows that the incident occurred at the place denoted by letter A but no blood was found from that place.

It is on the basis of the above facts that the learned Counsel for the Appellants-accused has vehemently argued that the informant Rizwan (P.W. 1) cannot be treated as a reliable witness especially when he has already filed an affidavit contrary to what has been mentioned in the first information report, that the place of occurrence and the genesis of the origin of the Marpit are not established, that the mode and manner in which the incident is alleged to have taken place is also not proved and that there is no explanation for the injuries caused to Zeeshan and Furqan and also that there was no reason for the injuries being caused to Mashqoor (P.W. 5) and therefore, it can be definitely said that the prosecution has not come with clean hands. His contentions are not devoid of substance.

The dying declaration Ext. Ka-14 shows that Irfan had caught hold of Toran deceased and then Zeeshan had caused two injuries in his abdomen. There is no mention in the first information report that Irfan had caught hold of him. Truth dances on the lips of the dying man. The dying declaration of Toran falsifies the story set up in the first information report except to the extent that Zeeshan had assaulted. The contention of the learned Counsel for the Appellants-accused to this effect appears to have substance.

Rizwan was the main target. But strangely enough he received only two injuries. One abraided contusion and the other abrasion. Both of them are simple in nature. This indicates nothing but doubt as to the correctness of the prosecution case. The contention of the learned Counsel for the Appellants-accused to this effect does not appear to be without substance.

In the result the appeal is allowed. The impugned judgment and order are set aside. The Appellants-accused are acquitted of the offences with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.