Shamshu and Another (In Jail) vs State of U.P.

K.N. Ojha, J.—Both these appeals have been preferred against the judgment and order passed by learned Vth Additional Sessions Judge, Agra, in Sessions Trial No. 584 of 1979, Salimuddin and two others v. State of U.P. Sessions Trial No. 584 of 1979, by which each of the Appellants has been convicted and sentenced to undergo life imprisonment u/s 302, I.P.C. read with 34, I.P.C. and five years R.I. u/s 392, I.P.C. Each of them has been further fined with Rs. 1,000 u/s 392, I.P.C. and in case of default in payment of fine is further sentenced to undergo R.I. for a period of one year. Both the sentences are directed to run concurrently.

The accused Shamshu and Sabir Hussain are in jail and accused Salimuddin alias Jugnoo is absconding, in respect of which coercive process for his arrest and process under Sections 82 and 83 of Cr. P.C. was issued but attendance of Salimuddin could not be procured.

Heard Sri Vinay Saran, learned amicus curiae and learned A.G.A. and have gone through the record.

According to prosecution Akhtar Hussain was aged about 16 or 17 years in the year 1979. His father Rafiuddin had a tea stall in the town Firozabad. Akhtar Hussain used to serve in the tea stall by providing tea to customers. On 9.2.1979 at about 9.30 p.m. Akhtar Hussain had carried tea from the tea stall to the hut of one Khalil. Later on he went to collect empty utensils. At the hut of Khalil the Appellants robbed of Khalil on the point of knife. On the shrieks of Khalil that he was robbed of, Akhtar Hussain chased those persons and caught hold of Salimuddin alias Jugnoo near the shop of Husne Adil. On exhortation of Shamshu and Sabir Hussain, Salimuddin alias Jugnoo assaulted Akhtar Hussain with knife. Shamshu and Sabir Husain were successful in making their escape good. Rafiuddin, father of Akhtar Hussain also ran behind them. Salimuddin was arrested on the spot with knife by Zahiruddin, Husne Adil, Anwar and Bande Hasan. Akhtar was taken to hospital by Jalaluddin and Aslam.

Report of the occurrence was lodged by Rafiuddin, the father of the deceased Akhtar Hussain, under Sections 394, 307, I.P.C. on 9.2.1979 at 10.30 p.m. at police station Firozabad North, which is at the distance of six furlong from the scene of occurrence.

At the hospital the doctor declared Akhtar dead. Information regarding death of deceased was received at police station on 9.2.1979 at 11.30 p.m. On the basis of which case was altered u/s 302, I.P.C.

Investigation was started by P.W. 8 S.I. Phaujdar Singh on 10.2.1979. He went on the spot, prepared site plan, Exhibit Ka-9, inquest report Exhibit Ka-10, recorded statements of witnesses Rafiuddin, Zahiruddin, Jabir Husain, Bande Hasan, Nisar Hasan, Anwar Husain, Khalil Ahmad and constable clerk Chhotey Lal u/s 161, Cr. P.C. Rest investigation was done by P.W. 12, S.I. Ranveer Singh.

P.W. 8, S.I. Phaujdar Singh sent the dead body for post-mortem examination on 10.2.1979.

Post-mortem on the dead body of Akhtar Hussain, aged about 16 or 17 years, was done on 10.2.1979 at 12.15 p.m. in the mortuary of District Hospital, Firozabad, by Dr. Raj Kishore Gupta. In his opinion death had taken place within one day. Rigor mortis was present in both extremities. There was no decomposition in the body. Following ante-mortem injuries were found on the dead body:

(1) Incised wound 2 cm. x 0.5 cm. x muscle deep on the left side chest. 4" below the left nipple.

(2) Incised wound 3.5 cm. x 1.5 cm. x cavity deep (loop of intestine protruding cut) situated on the left side abdomen. 5 cm. above the left anterior, superior iliac spine.

Peritoneum was congested and ruptured on left side and the cavity was full of clotted and liquid blood. About two ounce semi-digested food material was present in stomach. Semi-digested food material was present in small intestine. Faecal matter was present in large intestine. In the opinion of the doctor the victim had died due to shock and haemorrhage as a result of sustained injuries.

Police Sub-Inspector, Ranveer Singh recorded statements of witnesses Udaiveer Singh, Mohd. Usman, Constable Clerk Chhotey Lal on 11.2.1979, the statement of Dr. Vinay Kumar Yadav on 13.2.1979 and submitted charge-sheet against all the three Appellants on 13.2.1979. Material exhibits were sent for chemical examination on 3.3.1979. He recorded statement of Ward boy Bhagwan Singh, who stated that Akhtar Husain was dead while he reached the hospital. After the case was committed to the Court of Sessions, the accused were charged under Sections 304, 307 and 302 read with 34, I.P.C.

The case of accused Salimuddin is that he was arrested in the hospital and was falsely involved in the crime. The case of accused Samsuddin is that he was not present in Firozabad on 9.2.1979. He had gone to Sirsaganj for purchase of potato and he was falsely named in the F.I.R. The case of Sabir Hussain is that he was adopted by one Chhuttan elder brother of his father, hence enmity had developed with police. He was not present on the spot. Later on he came to know that he was involved in the crime.

The prosecution examined fact witnesses of the occurrence: P.W. 1 Rafiuddin, P.W. 2, Zahiruddin, P.W. 3, Husne Adil, P.W. 4, Khalil Ahmad, P.W. 5 Anwar, who are eye-witnesses of the occurrence. P.W. 6 is Constable Chhotey Lal, who wrote chick report on the basis of oral report lodged by P.W. 1 Rafiuddin and general diary report regarding alteration of case u/s 302, I.P.C. and recovery memo of knife and clothes of deceased. P.W. 7, Dr. Raj Kishore conducted autopsy on the dead body of the deceased and prepared post-mortem examination report and proved the same. P.W. 8 Phaujdar Singh made investigation in the case, recorded statements of witnesses u/s 161, prepared site plan Exhibit Ka-9, inquest report Exhibit Ka-10, P.W. 9 Dr. Vinay Kumar medically examined the accused Salimuddin alias Jugnoo, on 9.2.1979 at 11.25 p.m. in S.N.M. Hospital, Firozabad, and proved his injury report Exhibit Ka-14, P.W. 10 constable Brijendra Singh, P.W. 11 constable Nahar Singh and P.W. 12, Investigating Officer S.I. Ranveer Singh were also examined.

P.W. 9, Dr. Vinay Kumar, who medically examined the accused Salimuddin alias Jugnoo, on 9.2.1979 at 11.25 p.m. in S.N.M. Hospital, Firozabad, proved his injury report Exhibit Ka-14. He stated that following injuries were found on the body of Salimuddin alias Jugnoo:

(1) Lacerated wound 3 cm. x 0.5 cm. x skin deep on the middle side of scalp.

(2) Abrasion 1 cm. x 0.5 cm. on proximal end of right middle finger.

(3) Abrasion 0.5 cm. x 1 cm. on the right leg below knee-joint.

The accused Sabir Hussain has examined D.W. 1 Jabid Hussain alias Chhuttan Khan who is uncle of Sabir Hussain. He deposed that he adopted Sabir Hussain because he had no son. One Bunda died in hospital at Agra because he was beaten by the police of police station Firozabad. The police of police station, Firozabad was prosecuted and he was witness against them. He proved Exhibit Kha-2, the charge-sheet, which was submitted against the police personnel of police station, Firozabad North. He also stated that one Jalim Singh had died about 1-1/2 years back, who was also beaten by the police of police station, Firozabad South. Circle Officer Sohan Lal and others were accused in the case. Investigation was being done by Sub-Inspector Ranveer Singh, the then S.H.O. but he filed affidavit, on account of which Ranveer Singh had threatened him. Therefore, his adopted son Sabir Hussain was falsely involved in the case.

On appreciation of the evidence of the prosecution and the version of the defence, it was held by the learned Additional Sessions Judge that there was sufficient light and occasion for the witnesses to recognize the accused Appellants. Eye-witnesses supported the prosecution story and chhuri was recovered from the possession of Salimuddin. He was arrested on the spot and due to the injuries caused by him with chhuri Akhtar Hussain had died. The F.I.R. was promptly lodged by name against the Appellants and there being their active role, the Appellants were convicted and sentenced as mentioned above.

Aggrieved with their conviction and sentence instant appeal has been preferred.

During pendency of the appeal the accused absented. Two of them, namely, Shamshu and Sabir Hussain have been arrested and are lodged in jail, while Salimuddin alias Jugnoo is still absconding. Non-bailable warrant and processes under Sections 82 and 83, Cr. P.C. were issued but could not yield any fruitful result. Therefore, amicus curiae was appointed and argument of both the parties were heard.

P.W. 1 Rafiuddin, is the father of the deceased Akhtar Hussain. Presence of Rafiuddin on the spot is quite natural. He had a tea stall on which his brother Riyazuddin and his son Akhtar Hussain used to sit and serve tea to the customers. Akhtar Hussain was aged about 16 or 17 years at the time of the occurrence. He had gone to provide tea to Khalil Ahmad in his hut situate at Takiya Shah, in the same locality. Therefore, when alarm was raised by Khalil Ahmad that he was robbed, his attention was attracted and he ran towards the hut of Khalil Ahmad. In the light of street and light emanating from the shops, he saw that Shamshu and Sabir were running and Salimuddin alias Jugnoo was running behind them. He also saw that his son Akhtar Hussain was chasing them. When they reached near the shop of Husne Adil Akhtar Hussain caught hold of Salimuddin alias Jugnoo, who caused injuries with knife twice or thrice but in meantime he reached the spot and caught hold of Salimuddin alias Jugnoo along with knife. Khalil Ahmad, Bande Hasan and others also reached the spot and saw the occurrence. He also stated that Jalaluddin and Aslam kept Akhtar Hussain in a rickshaw and carried him to hospital. P.W. 1 Rafiuddin brought Salimuddin alias Jugnoo with his knife at the police station. By the time he started for the police station, the police also came to the spot. A detailed cross-examination was made but the witness has explained about the circumstances in which the occurrence took place and knife injury was caused by Salimuddin alias Jugnoo to Akhtar Hussain.

It was contended by the learned Counsel for the Appellant that if Rafiuddin, father of the victim, would have caught hold of Salimuddin alias Jugnoo, he would have caused injuries to him. This contention is not maintainable as is evident from the statement of Rafiuddin that when he caught hold of Salimuddin alias Jugnoo witnesses Khalil Ahmad, Zahiruddin, Bande Hasan and others also reached the spot and the accused was over powered. Salimuddin alias Jugnoo was quite conscious that he had looted Rs. 375 from Khalil Ahmad and he had to make his escape good. In such circumstances his intention was not to cause injury to other persons but his intention was only to commit murder of Akhtar Hussain because by doing so he could make his escape good. Therefore, if injury was not caused to the informant and other witnesses by Salimuddin alias Jugnoo on this basis the statement of Rafiuddin cannot be doubted. Statement of Rafiuddin is consistent and natural. There was source of light and he was capable of catching hold of Salimuddin alias Jugnoo. This circumstance confirmed the presence of the witnesses on the spot.

Another eye-witness is Zahiruddin, who has stated that he was standing at the betel shop of one Khalik near the shop of Rafiuddin-complainant. In his cross-examination he deposed that he was habitual of taking betel and he used to take betel 14 or 15 times in a day. In such circumstance his presence on the spot cannot be doubted. Much emphasis has been laid by the learned Counsel for the Appellant that he is involved in many cases and in many cases he was witness. This circumstance is not sufficient to disbelieve the witness when in his detailed cross-examination he has deposed as how Khalil Ahmad was robbed and on his alarm Akhtar Hussain, who was present there tried to chase the accused person. It was contended by the learned Counsel for the Appellant that there are two betel shops near the house of the witness and he was present on the betel shop near the tea stall of the complainant. His presence near the betel shop has been stated by other witnesses also. He had no enmity with the accused persons. He was present there and went to the police station to lodge the F.I.R. along with complainant-Rafiuddin. He narrated the whole story as to how on alarm he reached the spot and saw the occurrence when the injury was being caused to Akhtar Hussain by accused Salimuddin and also saw how Jalaluddin and Aslam carried Akhtar Hussain to hospital. Being the person of the same locality, his presence on the spot and his natural and consistent statement has rightly been believed by the court below.

P.W. 3, Husne Adil is another eye-witness who deposed that he has got a shop of general merchandize in Mohalla Hauli Wali Bhatti where there is tea stall of the complainant Rafiuddin. Husne Adil has stated that 7 or 8 shops were open. There was light of electricity. When Khalil Ahmad raised alarm that he was looted he saw that two persons Shamsu and Sabir were running away and Salimuddin alias Jugnoo was also running behind them and Akhtar Hussain was chasing them. Akhtar caught hold of the waist of Salimuddin. In the meanwhile Rafiuddin, father of Akhtar Hussain also reached there. Persons of the locality also came out of their shops because Khalil Ahmad was raising alarm that he was looted. By the time Husne Adil had come near the place and saw that Salimuddin alias Jugnoo had taken out chhuri and caused injuries on the left side of stomach of the victim Akhtar Hussain. Intestine of Akhtar Hussain came out but by that time the persons of the locality took full control over Salimuddin alias Jugnoo while rest two accused Shamsu and Sabir were successful in making their escape good. Jalaluddin, brother of the victim came and he along with his friend Aslam carried Akhtar to hospital where he died. P.W. 1 Rafiuddin, father of the victim, went to the police station to lodge the F.I.R. He also deposed that about hundreds of persons assembled there. When the shops of the locality were open up to that time, presence of Husne Adil on the spot was also natural. He stated specifically that at the time of the occurrence Jabir had taken cigarette from his shop and he was enjoying the cigarette when occurrence took place. He deposed that here was no other witness at his shop. Thus, P.W. 3 Husne Adil is a natural witness as the occurrence had taken place near his shop. His statement is natural and has rightly been believed by the court below.

P.W. 4, Khalil Ahmad is also a natural eye-witness of the occurrence. It is he, who had been robbed by the Appellants. On his alarm witnesses reached the spot. At that time Akhtar Hussain, victim, was present near the hut of Khalil Ahmad. Being a young boy he picked up courage to chase Salimuddin alias Jugnoo. Khalil Ahmad had no enmity with the Appellants. He had no reason to falsely implicate these persons. He deposed that Salimuddin alias Jugnoo had kept chhuri on his chest and threatened to cause injury to him in case he did not part with money. In the meanwhile Rs. 375 was taken away by accused Samshu from his pocket and another accused Sabir was also with Samshu. Khalil Ahmad was aged about 72 years old at the time of occurrence. Therefore, he was not physically capable of chasing the accused persons, but he went towards the place of occurrence and found that Akhtar Hussain was lying in injured condition and Rafiuddin had overpowered Salimuddin alias Jugnoo and had snatched churri from him. He also deposed that there was light of electricity on the spot coming from shops.

The learned defence counsel has submitted that the hut of Khalil Ahmad is known as Madakkhana and the witnesses have stated that it is fact that his hut is known as Madakkhana but liquor was not sold there. Even if it be taken that liquor was sold on his shop still his statement cannot be disbelieved on this ground. He has no enmity with the three Appellants, who belong to different familities. He has no dispute with these persons. Therefore, he cannot make a false case to falsely implicate those persons. He deposed that he eats only one bread and he lives alone. A person, who has reached his old age, is living alone and who has no enmity with the Appellants, cannot make false statement against these persons unless really he became the victim of robbery. His presence on the spot and his interest in arriving at the place of occurrence is natural. The Appellants used to visit that area, therefore, they were known to the witnesses. These Appellants robbed Khalil Ahmad. Salimuddin put his knife on his chest, Sabir was standing there and Samshu took out Rs. 375 from his pocket. All this happened prior to the murder of Akhtar Hussain, therefore, he had full knowledge as to how the injury was caused by Salimuddin alias Jugnoo to Akhtar Hussain. His statement excludes the possibility of injury being caused to the victim Akhtar Hussain by any person other than Salimuddin alias Jugnoo. Thus, statement of P.W. 4 Khalil Ahmad also supports the prosecution story.

P.W. 5 Anwar has also been examined, who is resident of the same locality Hauli Wali Bhatti. He deposed that he had his shop of bangles and he was present on the shop of one Munna halwai because he and Bande Hasan were taking sweet there. Shops were open and there was light of electricity in the shops at that time. When he heard alarm of Khalil Ahmad that he was robbed, he saw that Samshu, Sabir and Salimuddin were running away. He formed the opinion that these persons had robbed Khalil Ahmad. In the meantime Akhtar Hussain caught hold Salimuddin alias Jugnoo near the shop of Bande Hasan and Salimuddin alias Jugnoo caused injuries with chhuri to Akhtar Hussain. Salimuddin was apprehended on the spot by the witnesses but Samshu and Sabir were successful in running away to Sheeshgran locality. He has also deposed that police came there within few minutes. The name of Anwar also finds place in the F.I.R. Thus, his presence on the spot is natural and his statement is natural and consistent and cannot be disbelieved.

All above witnesses have been named in the F.I.R. Their presence on the spot is natural. They have made consistent statements. They have also stated that there was street light and there was also light emanating from shops. Alarm of Khalil Ahmad attracted the persons of the locality who were present in the shops and near it. Some were taking sweet and some were taking betel. Thus, presence of all the eye-witness on the spot is natural. They had no enmity with the accused persons, their statements being natural and consistent, have rightly been believed by the trial court.

The learned amicus-curiae has submitted that in this case no blood was found on the spot by the Investigating Officer and it creates doubt in regard to place of alleged murder. P.W. 8 Sub-Inspector, Phaujdar Singh, P.W. 12 Sub-Inspector, Ranveer Singh visited the spot. Site plan prepared by the Investigating Officer does not show the place where blood was found but shows the place where the victim caught hold of Appellant Salimuddin alias Jugnoo and where the accused Salimuddin caused injuries with churri to the victim. This place is shown by letter ''C'' in the site plan. Witnesses P.W. 1 Rafiuddin, P.W. 2, Zahiruddin, P.W. 3 Husne Adil, P.W. 4 Khalil Ahmad and P.W. 5 Anwar have stated that the victim had worn shirt, paijama, baniyan and coat. Exhibit Ka-23 shows that chemical examiner found blood on churri recovered from the possession of Salimuddin alias Jugnoo. Blood was found on shirt, paijama, baniyan, and coat of Akhtar Hussain. The two incised wounds were caused by Salimuddin alias Jugnoo on the body of the victim. One was muscle deep on left side chest and another incised wound was cavity deep on left side abdomen. Post-mortem examination report Exhibit Ka-8 is proved by P.W. 7 Dr. Raj Kishore and this report shows that cavity was full of clotted and liquid blood. These papers explained that the blood could not fall down on the earth because it was 9.30 p.m. of winter season of 9.2.1979 and the victim was wearing not only baniyan, shirt and paijama but coat also. Hence, part of the blood was soaked by these clothes and the rest blood instead of falling down on the earth passed in the cavity. Therefore, if blood was not found on the spot and it has not been shown in the site plan by the Investigating Officer, the place of occurrence cannot be doubted, on this ground.

The learned amicus-curiae also submitted that the injury was caused by deceased Salimuddin in his defence. If a person commits an offence and makes efforts to complete it and he is resisted by witnesses, the criminal has no right to commit murder of the person, who was creating obstructions in committing the offence. Therefore, if Salimuddin alias Jugnoo was running away and he was caught hold by the victim, he had no right of private defence. Thus, the plea of self-defence is, therefore, not available to the accused.

The learned amicus-curiae has further submitted that the intention of the Appellant was not to commit murder as he simply caused injury to make his escape good and, therefore, the charge of murder is not proved against the Appellants. Salimuddin alias Jugnoo had gone with knife to commit robbery. He did not only rob Rs. 375 of Khalil Ahmad but also caused repeated injuries to the victim Akhtar Hussain with knife. It shows that he had gone to the place with the intention that if any one comes on his way, he would be murdered. Therefore, the charges under Sections 302, I.P.C. and 392, I.P.C. are proved against Salimuddin alias Jugnoo.

So far as accused Samshu and Sabir are concerned, there is no evidence that they had gone to the place of occurrence with weapons. When Rs. 375 was taken away from Khalil Ahmad by Samshu the co-accused Sabir was standing there but no injury was caused by Samshu and Sabir either to Khalil Ahmad or to Akhtar Hussain. The moment Rs. 375 was robbed both these accused started running away. When they were being chased by the witnesses, and Salimuddin alias Jugnoo was behind them, Samshu and Sabir while running away had no occasion to look back and make exhortation to cause knife injury to Akhtar Hussain, who was chasing them. The intention of Samshu and Sabir was certainly to rob Khalil Ahmad but the intention for committing murder of Akhtar Hussain cannot be attributed to them. Therefore, the charge u/s 302 read with Section 34, I.P.C. is not proved against the Appellants Samshu and Sabir.

In view of above discussions the conclusion of the learned sessions Judge, Agra holding Salimuddin alias Jugnoo guilty under Sections 302 and 392, I.P.C. and imposing sentence of life imprisonment and five years'' R.I. and fine of Rs. 1,000 does not call for interference by this Court.

Criminal Appeal No. 2316 of 1980 filed by Appellant Salimuddin alias Jugnoo is dismissed. He is absconding. Let him be arrested and sent to jail to serve out the sentence.

Criminal Appeal No. 2216 of 1980 filed by Appellants Samshu and Sabir Hussain is partly allowed. The order of conviction and sentence passed against them by the trial court under Sections 302 read with 34, I.P.C. is set aside. They are acquitted from the charge under Sections 302 read with 34, I.P.C. The appeal preferred by them against their conviction and sentence u/s 392, I.P.C. is dismissed. They are confined in Jail of Agra. They will be detained in the jail to serve out the sentence imposed by the trial court u/s 392, I.P.C.