Sahebdeen and Others vs State of U.P.

Pratyush Kumar, J.—The present appeal filed by six appellants is directed against judgment and order dated 21st August, 1981 passed by Sri R.P. Pandey, the then IInd Additional Sessions Judge, Faizabad in Sessions Trial No. 123 of 1980 State v. Sahebdeen alias Sardeen and five others under sections 147 , 148 , 302 /149 , 324 /149 , 323 /149 IPC, P.S. Raje Sultanpur, District Faizabad whereby appellant Nos. 1,2 and 3 were convicted under sections 302 /149 , 324 /149 , 323 /149 and 148 IPC and each were sentenced to undergo imprisonment for life, rigorous imprisonment for one year, rigorous imprisonment for six months and rigorous imprisonment for one year, respectively. The rest appellants were convicted under sections 302 /149 , 324 /149 , 323 /149 and 147 IPC. They were sentenced to undergo imprisonment for life, imprisonment for one year, imprisonment for six months twice, respectively. All the sentences were directed to run concurrently.

Briefly stated the prosecution case in the hand may be summarized as under:--

"On 31st October, 1979 at 8.45 a.m. Ambika gave a written report at P.S. Raje Sultanpur stating therein that he and the accused party were pattidar and there was old enmity between them resulting in litigation. That day at 7.30 a.m. when his father Gurudeen was returning home after taking bath and he reached near the house of Sahabdeen, accused Sahabdeen, Jaut, Murli, Smt. Sudama, Km. Kevalpatti and Smt. Dasi armed with lathis, dandas, ballam, farsha and gandasa had surrounded his father with the intention to murder him and started to beat him. His father raised alarm, thereat Ramanand, Satai, Brijraj, Bhorai, he, his mother and sister-in-law reached there. In the scuffle his mother and sister-in-law also sustained injuries from lathis, dandas, farsha, ballam. He had come to the police station with his injured father and sister-in-law Hubraji. His father was brought on cot. His mother had sustained much injuries. She was lying on the spot. Accused persons could not be caught. They had run away."

At this report chick FIR was scribed. Case Crime No. 145 under sections 147 , 148 , 149 , 323 , 324 and 307 IPC was registered and entered into the report of general diary. Along with chitthi majroobi injured were sent for medical examination and treatment to PHC Jahangirganj. Investigation was entrusted to S.I. Nisha Nath Mishra who recorded the statements of injured first informant and one Ram Lakhan inspected the spot, took samples of blood stained and simple earth. At 3.15 p.m. at P.H.C. Jahangirganj injured Gurudeen died during the treatment. Autopsy on his dead body was performed. After concluding the investigation charge sheet was submitted against all the six accused persons.

The case was committed to the Court of Session where the accused were charged jointly under sections 147 , 302 /149 , 324 /149 , 323 /149 IPC. In addition to that appellant Nos. 1 to 3 were separately charged under section 148 IPC. The appellants pleaded not guilty and claimed to be tried. On all the charges they were tried together.

In the documentary evidence on behalf of the prosecution papers were filed out of which written report Ext. Ka-1, recovery memo Ext. Ka.2, Postmortem report Ext. Ka.3, F.I.R. Ext. Ka.5, Site plan Ext. Ka.7, Recovery memo Ext. Ka. 8, Copy of report Ext. Ka.9, Copy of report Ext. Ka.9, Copy of the report Ext. Ka.10, Inquest report Ext. Ka.11, Statement of Gurdeen Ext. Ka.16, Injury report of Ext. Ka.17, Injury report Ext. Ka.19, Injury report Ext. Ka.20 are material for the present purpose. In the oral evidence on behalf of the prosecution six witnesses were examined. Thereafter statements of accused under section 313 Cr.P.C. were recorded. On behalf of the defence documentary as well as oral evidence were given. Dr. B. Rai, D.W.1, Dr. R.H. Gupta D.W.2 were examined.

The learned Sessions Judge after hearing arguments for the parties, convicted and sentenced the appellants. He found eye witness account given by Ambika, P.W.1 and Hubraji P.W.2 reliable. In his opinion F.I.R. was promptly lodged. Discrepancies pointed out by the defence were minor. Medical evidence duly corroborated the eye witness account. He rejected the argument of the defence that place of occurrence could not be established. He found the defence evidence to be of no account.

Feeling aggrieved with the impugned judgment the present appeal has been filed. During the pendency of the appeal appellant Nos. 2 Jaut, appellant No. 5 Smt. Dasi and appellant No. 6 Smt. Kewalpati have died. Their appeal stood abated vide orders dated 10th December, 2015 and 10th December, 2006 respectively.

Heard Sri Brijesh Mohan Sahai, learned counsel appearing for the surviving appellants and Sri Sharad Dixit, learned AGA for the State and perused the record.

On behalf of the appellants learned counsel has submitted that eye witnesses are highly interested and unworthy of reliance. Their testimonies stand contradicted with medical evidence. He has further submitted that the learned trial judge has failed to appreciate the evidence in proper perspective. Place of occurrence could not be established. Use of lathi for inflicting injuries on Gurudeen also could not be proved. The learned trial judge failed to record a finding that all the six accused persons had formed an unlawful assembly for murdering Gurudeen and Gurudeen was murdered while they were members of that unlawful assembly. According to him appellants are innocent. The impugned judgment is illegal and perverse and deserves to be set aside.

On behalf of the respondent-State these arguments have been repelled. Findings recorded by the learned trial judge have been justified and it has been further submitted that Smt. Hubraji is an injured witness. She is fully reliable. In support of his replies the learned A.G.A. has placed reliance on the following cases:

"(1) Anoop Lal Yadav v. State of Bihar 2014 (8) Supreme 78. Para Nos. 20 and 21 of the report have been referred in support of the argument that a member of unlawful assembly is guilty of the crime committed by the assembly for this mere membership is sufficient.

(2) B.D. Khunte v. Union of India, 2014, (8) Supreme 87. On the same point reliance has been placed on the observations of the Hon''ble Apex Court made in paragraph No. 20 of the report."

The proper course for us would be that first we should appreciate the medical evidence and thereafter we scrutinize and re-evaluate the eye witness account in order to examine the merit of the respective submissions advanced as before us.

In the present case medical evidence consists of statements of Dr. Devendra Vikram, P.W.6 and Dr. Qazi Anwar Ahmad, P.W.3 injury report of Gurudeen Ext. Ka-11 of Pyari Ext. Ka-19 and Smt. Hubraji Ext-Ka 20 and postmortem report Ext. Ka3. To begin with we will have glance at the injuries sustained by the injured persons.

"Injuries of Gurudeen

Incised wound 8 cm. x 1 cm. scalp deep clean cut everted margins, directed into posterially on right side of head 6.5 cm above the right eye brow.

Incised wound 3 cm. x .5 cm with incised orbital bone 1.5 c.m. in length placing transversly in left eye brow.

Incised wound 1.5 cm x .5 cm on lateral canthus of left eye.

Stab wound 5cm.x 2 cm x chest deep on left side of chest 3 cm above the left nipple.

Incised wound 2.5 c.m. x 1 cm. clean cut with hanging skin over injury on top of right shoulder.

Incised wound 2 cm. x 2.5 cm clean cut everted margins on right upper arm 10 cm above to the elbow joint.

Incised wound 1 cm. x .25 cm clean cut everted margins on right elbow joint.

Punctured wound 5cm x .5 cm. x 3 cm deep on left thigh 22 cm above the left patalla.

Incised wound 7 cm. x 1 cm. clean cut everted margin on back of left leg 12.7 cm. above the left ankle joint.

Incised wound 8 cm. x 1 cm clean cut with incised lower end of fibula bone in length of 3 cm. on left ankle joint.

Incised wound 4 cm x 2 cm clean cut and hanging skin flap with chopped tibial bone of right side in length 3 cm x 1 cm on right leg 8 cm above the right ankle joint.

Incised wound 3.5 x 1 cm clean cut with incised bone (fibula Rt. side) in 2 cm length on right on the joint.

Incised wound 7 cm x 2.5 cm clean cut with cut bone (matatorsal II & III) 4 cm in length on right side of foot.

Incised wound 4 cm x 1.5 cm clean cut on front of right ankle joint with hanging skin flap on front of right ankle joint.

Injuries of Pyari

Abrasion 2 cm. x 0.5 cm on the back of right chest 6 cm. to the angle of Right scapula

Contusion 6 cm. x 2 cm. on the back of left chest 2 cm. below to the angle of left scapula

Contusion 5 cm. 2 cm. on back of the right chest 4 cm. below to the right acromion.

Punctured wound 1 cm. x .5 cm x cm deep on right arm 1 cm above the right elbow joint.

Contusion 8 cm x 2 cm on right forearm 1 cm. below to the right elbow joint.

Contusion 6 cm. x .5 cm. on left forearm 8 cm above to the left wrist joint.

Incised wound 2 cm. x .5 cm. clear cut on right leg 10 cm above to right angle joint.

Injuries of Hubraji

Penetrating wound .5 cm x .25cm x 1cm on left breast 7 cm. above to the left nipple (back side)

Contusion 8 cm. x 3 cm. on the left forearm 4.5 cm. below to the left elbow joint.

Contusion 8 cm. x 3 cm. on dorsum of left hand

Contusion 1 cm. x .5 cm. on tip of the little finger of left side."

Their injury reports have been proved by Dr. Devendra Vikram, P.W.6. The other medical evidence comprises postmortem report, Ext. Ka-3 of Gurudeen and statement of Dr. Qazi Anwar Ahmad P.W.3.

Dr. Qazi Anwar Ahmad, P.W.3 has stated that he performed autopsy on the dead body of the deceased. Deceased was aged about 50 years, his death had taken place two days ego. Except fingers of the leg rigor mortis had passed away from the dead body. During external examination he found 14 ante mortem injuries on the dead body of the deceased. Death had occurred due to shock and haemorrhage as a result of ante mortem injuries. Penetrating wound could have been caused with ballam and incised would could have been caused by farsha and gandadasa. The witness has proved post mortem report Ext. Ka-3 wherein he has recorded the following ante mortem injuries:

"(i) Bandaged and stitched wound, 8 cm x 0.75 cm x scalp deep on right side of skull 6 cm above the right eye brow. Vertical.

(ii) Bandaged and stitched wound, 3 cm x 0.5 cm x bone deep (bone cut), on left eye brow, on lateral aspect transverse.

(iii) Bandaged and stitched wound, 1.5 cm x 0.5 cm x 0.05 cm on lateral end of left eye, semicircular.

(iv) Punctured wound 0.5 x 0.25 x cavity deep margin clean cut, on left side of chest upper part, 6 cm above and lateral to left nipple.

(v) Bandaged and stitched wound, V-shaped, 4 cm x 1.3 cm x 1.2cm, on front and middle part of right ankle joint.

(vi) Bandaged and stitched wound, 7 cm x 2.4cm bone deep on front right side foot, 3 cm below the medial malleolus Horizontal.

(vii) Bandaged and stitched wound, 3.5 x 1 cm x bone deep on right ankle joint medial malleolus, Horizontal.

(viii) Bandaged and stitched wound, 4 cm x 1.8 cm x bone deep on right leg, 8 cm above the right ankle joint.

(ix) Bandaged and stitched wound, 8 cm x 0.9cm x bone deep on left ankle joint, lateral aspect, starting from lateral malleolus to front of left ankle joint, Horizontal.

(x) Bandaged and stitched wound, 7x0.9 cm x muscle deep on left leg back, 12.7 cm above the left ankle joint, Horizontal.

(xi) Punctured wound 0.5 cm x 0.25 x 3 cm, margins clean cut, on left thigh anterolateral aspect 24 cm above the left knee joint.

(xii) Incised wound 1 cm x 0.25 cm x 0.5 cm, margins clean cut on lateral aspect of right elbow joint, horizontal.

(xiii) Bandaged and stitched wound 2 cm. x 0.25 cm x muscle deep, on antrolateral aspect of right arm, 10 cm above the right elbow joint. Transverse.

(xiv)Bandaged and stitched wound, 2.5 cm x 0.9 cm x 1 cm on top of right shoulder joint, front. Horizontal."

On internal examination he found the following antemortem injuries on the body of the deceased.

"(i) Clean cut 2 cm long up to whole thickness of bone of lateral part of superior orbital part of frontal bone left side of skull underneath external injury No. 2.

(ii) Clean cut whole thickness of 3rd left rib=anterior part =left lung punctured upper lobe clotted blood about 10 Ounces in chest cavity. Underneath injury No. 4.

(iii) Clean cut whole thickness of neck of right talus bone underneath injury No. External antemortem 6 number.

(iv) Clean cut whole thickness of lower end of right tibia just above right medial malleolus underneath injury No. 7.

(v) Clean cut whole thickness of lower end of left fibula under external ante mortem injury No. 9."

Death of the deceased has not been disputed on behalf of the defence. The witness was subjected to cross-examination only on the point whether lacerated wounds could also be stitched or not, if so, how and when. According to this witness when bleeding from lacerated wound is excessive in that condition by cutting irregular margins lacerated wounds are also stitched. According to him wound would bleed upto 6-7 hours. Thereafter upto 12 hours from the injury some blood would keep oozing from the wound. According to him about the opinion given by him in reference to time since death variation of two hours on either side is possible. To a court question he has replied that death could have occurred on 31st October, 1979 at 3.15 p.m.

In this way there is no serious challenge to the veracity of the testimony of this witness. Keeping in view the answers given by him during cross examination we find his testimony to be worth of reliance and duly corroborated by postmortem Ext. Ka-3 and hold that homicidal death of the deceased had occurred on 31st October, 1979 at 3.15 p.m. due to shock and haemorrhage as a result of ante mortem injuries, noted hereinabove. Nature of injuries of Smt. Pyari also persuades us to hold that those injuries could not have been manufactured. Injuries of Hubraji are simple in nature and except injury No. 1, all were sustained on non vital parts. Her injuries could have been caused during the occurrence or they were manufactured. This we will decide while discussing ocular version of the prosecution story.

Ambika P.W.1 is the first informant and son of the deceased. His testimony has been impeached on the ground that during occurrence this witness had not received any injury whereas his father, mother and sister-in-law had sustained injuries. According to learned counsel for the surviving appellants absence of injury belies the presence of witness during the occurrence. We have perused his testimony thoroughly. He has given explanation for not receiving the injuries as he was of young age and due to fear he did not try to save his parents and sister-in-law. The abnormal conduct of the witness may not be a ground sufficient to discard the testimony of the witness. The Hon''ble Apex Court in the case of Rana Partap and Others Vs. State of Haryana, has made observations to clarify different reactions of different persons. The Hon''ble Apex Court has observed in this reference that every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Therefore, on this ground his testimony cannot be disbelieved. The second challenge to this testimony is that there is a major contradiction in his statement when during cross-examination he has admitted that he had wrongly mentioned that Smt. Sudama, Kumari Keval Patti and Smt. Dasi had also struck his father with lathi and danda. He has also admitted that this part of his statement made before the investigating officer was also wrong. The indicated contradiction is a material one but its negative effect will remain confined to the part played by these three women accused. So far as role of other respondents are concerned on this point this contradiction has no bearing because about their role the testimony of this witness is consistent and corroborated from the narration given in the first information report.

We have gone through his statement because he is related witness and between the two families there were acrimonious relations. The witness has to be treated to be inimical witness for this reason. After strict scrutiny we find that presence of this witness at the time of occurrence cannot be disputed. The first reason is that in the present case FIR has been lodged very promptly. Incident had occurred at 7.30 p.m. FIR has been lodged after a gap of 1 hour and 15 minute. Police station is situated at the distance of 3 miles from the place of occurrence. The witness has rustic background. His idea of time has to be treated to be vague. He has given vivid account, how he had proceeded to lodge the FIR along with his injured father and sister-in-law. Leaving her mother in injured state, which tends corroboration to the fact that this witness really took prompt decision to take injured (his father and sister-in-law) for treatment and to lodge the FIR. The occurrence took place near his house. He explains the reason how he reached there. His account of the occurrence also appears to be eye witness account.

Smt. Hubraji, P.W.2 is the sister-in-law of the first informant and daughter-in-law of the deceased. She has also given vivid description of the occurrence being near to the place of occurrence she could have reached there on the alarm raised by the deceased. Her presence at the spot appears to be natural and probable. The testimony of this witness has been impeached on the ground that deceased had not received any injury from lathi and danda whereas this witness claims that the deceased was beaten by women accused with lathis and danda. Perusal of testimony reveals that she has stated that all the accused were beating his father-in-law. While giving details she has stated that she and her mother-in-law were beaten by the three women accused and by Sardeen and Moheen also.

Learned counsel for the appellants submits that her testimony is at variance with the testimony of Ambika P.W.1 who has stated that women accused did not struck lathi and danda blows on his father. The question arises whether we should believe Ambika P.W.1 on this point or Hubraji P.W.2. Since statement of Ambika is corroborated by the medical evidence, we believe that account of Ambika is more nearer to truth but this discrepancy would not made Smt. Hubraji, P.W.2 to be a witness unworthy of reliance because her statement about the role of women accused in this regard is a generalised statement. Even if for one moment we accept that on this point this witness is lying, even then principle of false in one false in all cannot be applied for finding out evidential value of this witness vide Nisar Ali Vs. The State of Uttar Pradesh, . Except this minor point her testimony remains unshaken during cross-examination. She had received injuries. This fact stands corroborated from the evidence of Ambika, P.W.1, therefore, we treat her to be an injured witness and her testimony has probative force of an injured witness, hence we treat her to be an injured witness and take her presence to be natural and probable. Overall we find her to be a reliable witness except the point indicated above.

On behalf of the surviving appellants one legal argument has been advanced which requires to be discussed at this juncture. According to him the deceased had not received any injury from the lathis and danda assigned to appellant Nos. 4,5 and 6 i.e. women accused. On the strength of this fact he has submitted that there was not an unlawful assembly having common object to commit murder of Gurudeen, therefore, conviction of the surviving appellants under section 302 /149 IPC is not sustainable. He has further submitted that there is no evidence of common intention between appellant Nos. 1,2 and 3, therefore, in absence of any specific evidence it is doubtful who caused the death of the deceased and in absence of common intention no appellant could be convicted for the charge of murdering Gurudeen.

We are in agreement with the argument advanced in support of the surviving appellants to this extent that absence of injuries from blunt object on the person of the deceased difference in the nature of weapon assigned to appellant Nos. 1 to 3 on one hand and appellant Nos. 4 to 6 on the other hand are indicative of the fact that the women accused were not part of an unlawful assembly having common object to commit murder of Gurudeen. Both the eye witnesses reached thereafter the occurrence had begun. From the overt acts of the accused persons we have to gather their mental state. Overt acts of appellant Nos. 4 to 6 go to show that they had no intention or object either to murder or cause hurt to Gurudeen. They did not inflict a single blow on his person. Thus we are of the opinion that in the present case the prosecution could not prove the common object of the unlawful assembly. Hence in the present case vicarious liability with the help of section 149 IPC could not be fixed on all the appellants.

On the basis of the overt act we negate the second limb of the arguments on behalf of the surviving appellants. Appellant Nos. 1 to 3 used dangerous weapon to inflect injuries to the deceased, some of them on vital parts. Their collective manner of assault is an unmistakable evidence that they were sharing common intention to commit murder of Gurudeen, therefore, appellant Nos. 1 to 3 cannot escape the consequences of their act and they are held guilty of committing murder of Gurudeen in furtherance of the common intention shared by each of them. Their conviction under section 302 /34 IPC appears to be well founded. Respondent Nos. 4 to 6 can simply be held responsible for voluntarily causing injuries to Hubraji. We cannot hold them guilty of the same in reference to injuries caused to Smt. Pyari since she has not been examined. There are specific allegations that Murli had inflicted injury by sharp edged weapon to Smt. Hubraji. The evidence against Sardeen is not clinching. Conviction of Murli for voluntary causing injury to Smt. Hubraji by ballam also stands proved beyond doubt.

Learned AGA has submitted that injuries of Smt. Pyari stands proved by the evidence of Dr. Devendra Vikram, P.W.6 corroborated by her injury report Ext. Ka-19. According to him the surviving appellants cannot be spared, due to her non examination, from the consequences of their misdemeanor. In reply to the argument on behalf of the surviving appellants attention of the Court has been drawn to the cross-examination of Dr. Devendra Vikram, P.W.6 where he has stated that at the time of his statement on oath none of the injured was present. Had Smt. Pyari been identified by him, deposition would have been different. We agree with the replies submitted on behalf of the surviving appellants that charge in regard to voluntary causing hurt with lathis and dandas and dangerous weapon to Smt. Pyari stands not proved.

One other argument has been advanced on behalf of the State-respondents that Smt. Hubraji also received one injury from spear inflected by Murli. On the strength of this fact he submits that whatever injuries were inflected on the injured persons were inflicted in furtherance of the common object of the unlawful assembly, therefore, along with Murli three women accused should also be punished under section 324 /149 or 34 IPC. This is a question of fact to be decided on the basis of evidence of the eye witnesses. According to Hubraji, P.W.2 she was beaten by Sardeen and Murli besides respondent No. 4 to 6. Her statement stands contradicted with the medical evidence. She has received only one injury caused by sharp edged weapon. Statement of Ambika, P.W.1 reveals that Murli and women respondents had beaten his sister-in-law. Immediately after this statement she repeated that Smt. Sudama, Keval Patti and Smt. Dasi had beaten her. Thus from the ocular version it is not clear whether Murli inflected injury on Hubraji along with respondent Nos. 4 to 6 in furtherance of the common intention of all the four or his act was unilateral, when there are two probabilities, one which favours the accused is accepted by the Court.

Keeping in view this settled legal position, we reject the argument advanced on behalf of the State-respondent that Smt. Hubraji was beaten by respondent Nos. 4 to 6 and Murli with the common intention shared by all of them.

Thus we find charge under section 302 proved against only surviving appellant No. 3 rest appellant Nos. 1 and 2 had died and their appeal stood abated. Out of three women appellants, appellant No. 6 had died. Against appellant Nos. 4 and 5 charge under section 323 IPC stands proved. Against Murli charge under section 324 IPC also stands proved. Against appellant Nos. 4 and 5 charge under section 302 /149 and 324 /149 IPC stand not proved. Charges framed under section 147 and 148 IPC against all the surviving appellants stand not proved.

Before concluding we would be failing in our duty if we do not make reference to the defence version. Though learned counsel for the surviving appellants had not based his argument on the defence version.

Defence version is that in the intervening night of 30th/31st October, 1979 at about 1 am in the night some miscreants wanted to abduct Smt. Hubraji while resisting them, the deceased and injured received injuries, which proved fatal to the deceased. After deliberation and on account of bitter enmity existed between two parties false FIR was lodged against appellant.

The only evidence led by the defence relates to injuries sustained by appellant No. 1 Sardeen three months prior to the present occurrence to show that he was disabled and incapable of wielding any weapon.

Since appeal filed by Sardeen has stood abated, the defence evidence need not be examined. No evidence to strengthen the defence case as gathered from the suggestion given to eye witnesses during cross examination, has been given. Thus defence version as narrated above, remains unsubstantiated.

In view of above, we are of the opinion that appeal of Murli succeeds only to the extent that his conviction and sentence under sections 323 /149 and 148 IPC deserves to be set aside. We affirm his conviction and sentences on other two counts. The appeal of Smt. Sudama and Smt. Dasi appellant No. s 4 and 5 succeeds to the extent that their conviction and sentences under section 302 /149 , 324 /149 and 147 IPC deserve to be set aside. However, their conviction for voluntarily causing hurt to Smt. Hubraji is confirmed though we are of the opinion that considering the fact that their appeal remained pending for more than 34 years, they are now of advanced age, we reduce their sentence from six months'' rigorous imprisonment to one month''s simple imprisonment.

Accordingly, appeal of the surviving appellants is allowed to the extent mentioned above and also partly dismissed to the extent mentioned above. The surviving appellant No. 3 Murli is in jail. The appellant Nos. 4 and 5 are directed to surrender their bail before the Session Judge, Sultanpur who shall sent them to jail to serve their sentences. The Sessions Judge is also directed to send the conviction warrant of Murli, appellant No. 1 with details of sentences he has to serve to the Superintendent of concerned jail so that he may serve his remaining sentences. Period already undergone by any of the surviving appellants shall be adjusted in the substantive sentence of imprisonment.

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