The State of U.P. vs Atabul and Others

B.B. Agarwal, J.—This appeal is on behalf of the State of U.P. against the judgment and order dated 10.8.1983, passed by Sri V.S. Agarwai, the then Sessions Judge, Deoria, in Sessions Trial No. 390 of 1982, State v. Atabul and four Ors. under Sections 147, 148 and 302/149 I.P.C.

Learned Sessions Judge found Atabul, accused respondent No. 1, guilty of committing offence u/s 304 part II of I.P.C. instead of 302 I.P.C. and convicted and sentenced him to undergo one year''s R.I. and to pay a fine of Rs. 5000/-. In default of payment of fine, respondent No. 1 Atabul was directed to undergo two years further R.I. The fine , In case of deposit, was directed to be paid as compensation to the complainant.

The accused Atabul Hussain was also charged for the offence u/s 148 I.P.C., but he was not found guilty of the said offence and was acquitted of the said charge. Other accused, namely, Ashik Ali, Abdul Hazi, Rijwanullah and Mansoor Ali were not found guilty of any charge and they were acquitted of all the charges. The appeal has been preferred for setting aside order of acquittal passed in connection with the accused persons.

During the pendency of this appeal respondent No. 3, Abdul Haji, was reported to have died. The appeal was ordered to abate against him vide order dated 23.3.2005.

Brief facts of the case are that accused Ashik Ali is the son of co-accused Abdul Haji while other accused, namely, Atabul Hussain .Mansoor Ali and Rijwanullah are grandsons of Abdul Haji. Smt. Kesri Devi (deceased ) was the mother of the complainant , Bhagirathi. It is said that there was a Kali-Sthan and a pit between the house of Bhagirathi and a Mosque. The accused Abdul Haji and others wanted to flow sullage water of the Mosque in that pit. The parties were having a dispute in that connection and on that account proceedings under Sections 107, 133 Cr.P.C, were initiated.

On 13.6.82 the Taati of Bhagirathi was blown by wind to the grove of Atabul and Atabul attempted to throw it away. Smt. Kesri Devi, mother of Bhagirathi, protested against it, whereupon he abused her. Smt. Kesri Devi again protested ; whereupon Atabul went to his house paying that he would soon deal with her and Smt. Kesri Devi meanwhile returned back to her house. At about 8 A.M. Atabul returned back with his licensed gun (Ext.1) accompanied by other accused persons. At that time Ashik Ali was armed with Danda , while Mansoor Ali and Rijwanullah carried brick-bats. At that time Bhagirathi also came out of his house. Atabul immediately fired a shot on Smt. Kesri Devi, who Tell down under a Neem tree and died. That Neem tree was at a distance of about 8 steps of the house of Smt. Kesri Devi. Rijwanullah and Mansoor Ali threw brick bats, one of which hit Ramdaras on his head. The accused then tried to escape, but they were chased by Ramdaras, Shanker, Ambika Prasad, Ram Surat, Gorakh and Murari. Atabul fired another shot from his gun in the air to scare away these persons, but he was apprehended by those persons along with his gun. The other accused managed to escape. Atabul was then entrusted to Bhabhuti Chaukidar along with his gun and thereafter, Bhagirathi went to P.S. Rampur Karkhana and lodged the report at the police station.

After the lodging of the report, police immediately came in action and S.I. Ram Bahadur Singh started investigation. He held inquest on the dead body of the deceased and prepared inquest report and sent the dead body to the mortuary for postmortem,

I.O. interrogated Bhagirathi, complainant and inspected the spot, prepared a site plan of the place of occurrence (Ext.Ka12) took blood stained and simple earth (Ext.5 and 6) under memo (Ext. Ka-13) and the pieces of bricks under memo (Ext. Ka-2) were also seized by I.O. from the spot. Accused Atabul was taken into custody. Atabul''s licensed gun(Ext-1) and two cartridge cases recovered from that gun were also taken by the I.O. in his possession vide memo (Ext. Ka-14). I.O. (sic) interrogated other witnesses. Ramdaras was sent to the hospital for medical examination.

Thereafter, he returned back to the police station and put the accused Atabul in the lockup and recovered property in the Malkhana. The recovered gun and the cartridges were sent to the Ballistic Expert, while the blood-stained and simple earth were sent to the Chemical Examiner. The reports of the Ballistic Expert ( Ext. Ka-16), of Chemical Examiner (Ext.Ka-17) and of Serologist (Ext.Ka-18) were also placed on record . After completing the investigation the charge sheet was submitted by the I.O. against the accused person on 7.7.82.

The post-mortem examination on the dead body of Smt. Kesri Devi was conducted by Dr. Muhammad Suhel Alam on 14.6.82. Post-Mortem Report (Ext.Ka-3) was prepared. He found one gun shot wound of entry on the dead body of the deceased.

The injured Ramdaras was medically examined by Dr. Subhash Chandra Srivastava on 15.6.62. The Doctor found one lacerated wound on the head of Ramdaras vide injury report (Ext Ka-4).

Prosecution in this case examined six witnesses. Out of them P.W. 1 Bhagirathi is the complainant and Ramdaras and Shankar Prasad are the eye-witnesses of the occurrence. (P.W.2) Ramdaras is also injured. Remaining witnesses were more or less of formal nature.

The accused denied allegations of prosecution and claimed trial. Atabul Hussain alleged his implication due to enmity and other accused also alleged enmity with the witnesses. Atabul alleged in written statement as follows:-

...that he was employed in Government service and came to his village only in holidays, He was fond of hunting and on the date of occurrence he had gone for bird shooting in the morning towards Nerui lake. When he was returning back he found the Taati of Bhagirathi in his grove which was damaging some new saplings.

when he scolded Bhagirathi in that respect and tried to remove the same with his feet, Bhagirathi lost his temper and abused him. When be replied to him, some persons began collecting there with lathi, Danda and, therefore, he tried to rush towards his house. Bhagirathi and his companion chased him and gave him 2 or 3 Danda blows. In his exasperation he fired his gun which hit Smt. Kesri Devi. By that time he was surrounded by some persons and Ramdaras tried to snatch away his gun. He raised his arms and tried to push him away with the butt of the gun whereby the second shot got fired. At that time Abdul Ha/7 and Mansoor were also there. The village people then caught him and the Investigating Officer took him to the police station and he was then sent to the jail on the next day. On 156,82 he was medically examined. He had no enmity with Smt. Kesri Devi nor had he anything to do with the dispute about mosque. He alleged that he had fired in self defence because of which Smt. Kesri Devi was hit.

Ashik Ali alleged that he had gone to ease himself and on returning back he found that Atabul had been captured by a crowd. He alleged false implication due to the litigation about the Mosque.

Rijwanullah alleged in his statement that he was working on the flour-mill and reached the spot on hearing the shot of the gun. He denied having thrown any brick bat and alleged false implication.

Abdul Haji alleged that he was at his house and on hearing the noise he reached at the spot. He found four or five persons assaulting his grandson Atabul. Atabul then fired a gunshot. When he himself tried to intervene, he was also given 5 or 6 Danda blows. He then ran away and heard the sound of the second shot. He did not get himself medically examined out of fear that his participation might be proved on the spot. He got himself medically examined after seeking advice of some persons.

Mansoor Ali alleged that he had gone to the flour-mill and when he was returning back he heard some vituperative exchanges. When he rushed towards that side, he found Haji Ji also going towards that side. He also saw that 4-5 persons were chasing Atabul and had wielded Danda on him. When he reached near him, he was also beaten by Danda. Atabul then fired a gunshot . Mansoor Ali ran away from that place and went to Deoria. One person met him and he got a report typed for being sent to the Superintendent of Police. He gave that report at the residence of S.P. Deoria . He denied to have thrown any brick on any person,

In the defence the accused persons examined Dr. Shri Chandra Gupta, D.W.1, who proved the injuries of Atabul and Abdul Haji examined in jail and Dr. Chandra Prakash who proved injury reports of Mansoor Ali and Abdul Haji examined in District Hospital, Deoria. The application given by Mansoor Ali to S.P.Deoria ( Ext. Kha- 1) was also filed in defence and the injury reports Ext. Kha -2 to Ext. Kha-5 were also produced in defence.

After considering entire evidence produced by prosecution and the defence, learned trial court did not find accused Ashik Ali, Abdul Haji, Rijwanullah and Mansoor Ali guilty of charges under Sections 147 and 302 read with Section 149 I.P.C. and Atabul Hussain guilty of charge u/s 148 I.P.C.. However, accused Atabul Hussain was found guilty for the offence punishable u/s 304 part II of I.P.C. instead of u/s 302 I.P.C. for which he was charged and sentence was passed by learned trial Court as stated earlier. Against the said acquittal of respondents No. 2 to 4 and respondent No. 1 for the offence u/s 302 and 148 I. P. C. present appeal has been filed.

We have heard Miss. Usha Kiran, AGA, on behalf of the State and Sri P.M. Mishra on behalf of accused respondents. The contention of the State is that the trial court did not assess the prosecution evidence properly because it was proved by the evidence on record that all the respondents /accused had formed unlawful assembly and had acted and participated in the murder and Mar-peet in prosecution of the common object of the assembly to commit murder and assault and , therefore, Atabul was clearly liable to be convicted and sentenced for committing the offence u/s 302 I.P.C. and 148 I.P.C. and the other accused for having committed the offence u/s 302/149 and 147 I.P.C. On the other hand, the counsel for the accused respondents supported the impugned judgment.

It is to be noted that as per the post mortem report and the opinion of Dr. Muhammad Suhel Allam, P.W.4, only one gun shot wound had been fired hitting Smt. Kesri Devi and that shotbreated an exit also and the ante mortem injury on the chest of the deceased was the cause of death of Smt. Kesri Devi.

Accused Atabul has admitted in his statement u/s 313 that on 13.6.82 when he scolded Bhagirathi as his Taati had damaged new saplings in his grove and he tried to remove the Taati by his feet, Bhagirathi lost temper and abused him and after that when Bhagirathi and his companions gave him 2-3 Danda blows and then in order to save himself he fired his gun which hit Smt. Kesri Devi. Thus , it is clear that Kesri Devi died as a result of gun shot injury caused by Atabul accused on 13.6.1982 at 8 A.M.. It has also come in evidence that Atabul had made second shot in the air to scare away the persons who were chasing him. It is the case of the prosecution and it is not disputed that Atabul was apprehended by public persons along with his gun (Ext. 1) having two empty cartridges ( Ext. 7 and 8) while he was trying to escape and he was handed over to police along with his gun on that day. The report of the Ballistic Expert (Ext.7 and 8) had been filed by the prosecution.

Thus, involvement of Atabul is apparent and proved not only by his own admission through statement u/s 313 Cr.P.C. , but also by evidence of the eye witnesses, report of Ballistic Expert and postmortem report of the deceased.

It is also proved beyond all reasonable shadow of doubt that Smt Kesri Devi died as a result of gun shot injury on her chest. Now we have to consider the evidence and circumstances under which fire shot was made on spot by Atabul, He made first fire shot on spot by his gun in his right of private defence when he was given Danda blows by Bhagirathi and his companions and second fire shot was made by him in the air just to scare the public persons who were chasing him while he was running from the spot to save him. The evidence produced by the prosecution does not show that any Danda blows were given to the accused Atabul by complainant and his companions while they were chasing the accused persons . However, D.W. 1 Dr. Sri Chandra Gupta and D.W. 2 Chandra Prakash have proved injury reports (Ex. Kha. 2 to Ex. Kha. 5) of injured Atabul, Abdul Haji and Mansoor Ali. No explanation of these injuries has been given by the prosecution. It has come in evidence in the statements of the . D.W.1 and D.W 2 that these injuries could possibly be caused on 13,6.1982 i.e. on the date of the incident. However, injuries noted by the doctors on the persons of the accused were simple in nature and were almost superficial , hence omission on the part of the prosecution to give explanation of these injuries was not fatal to the prosecution case and the prosecution case would not be thrown out altogether in the absence of explanation by prosecution of the injuries of the accused persons. It has been held in the case of Jagdish Vs. State of Rajasthan, that unless the injuries are serious in nature and were proved to have been caused at the time of occurrence, it is not obligatory on the part of the prosecution to explain them . In view of the statement of the Atabul that the fire shot was made by him on the spot hitting the deceased and in view of the postmortem report showing only one fire wound of entry on the dead body of the deceased, it is clear that deceased died due to injury caused to her by fire shot made by Atabul accused,

Now, the simple question is as to what offence had been committed by Atabul under the circumstances of the case. It is proved by the evidence of the witnesses that there was some altercation in the grove of Atabul in between Atabul and Kesri Devi and in that background , this occurrence had taken place. It is the case of the prosecution that both Atabul and deceased had returned back from the grove and had traversed sufficient distance before the fatal shot was fired. It does not appeal to common sense that Atabul was allowed to go to his house for bringing his gun and Smt. Kesri Devi would remain standing outside her house particularly when P.Ws. Shanker Prasad had seen both of them engaged in heated exchanges, returning back from the grove. Hence, the defence version was quite probable that some persons including Bhagirathi and Ramdaras tried to overpower Atabul at that place and in order to escape himself Atabul fired his gun. He had also received injuries and, therefore, he had got right of his self-defence . That right has however, been exceeded. It appears that when he fired gun he had no animus to commit murder.

In the case of Yogendra Morarji Vs. State of Gujarat, it was held that even where some unarmed persons had stopped the accused for gheraoing him and the accused fired three shots killing one of them, the offence was covered by the second part of Section 304 I.P.C. as he had exceeded the right of private defence. In the present case also the accused received injuries by blunt object, It was obviously a case of exceeding right of private defence punishable under the second part of Section 304 I.P.C. and it was not covered by any of the 4 clauses of Section 300 I.P.C.

So far as other accused are concerned , it is argued that they are liable vicariously as all of them had participated in the Mar-peet in prosecution of their common object of the unlawful assembly even if they do not commit any overt act in the incident. This argument in our opinion has no force. It is not proved by evidence on record that other four accused ostensibly shared any intention to commit murder or assault . There is allegation that some of them threw brick-bats hitting Ramdaras. However, the possibility can not be ruled out that Ramdaras might have sustained injuries in a way as alleged by the defence , in view of the statement of P.W. 3, Shanker Prasad that Ramdaras had received injuries by butt of gun of Atabul, while he was being chased by public persons including Ramdaras

The motive for the occurrence and involvement of the accused is said to be the dispute and litigation between complainant Bhagirathi and accused persons in connection with the flow of sullage water of the mosque in a pit near Kali-sthan . Admittedly the mosque was near the house of the complainant . However, the immediate motive alleged by the prosecution was for the involvement of the accused Atabul only who had been abused by Smt. Kesri Devi on the alleged date of the incident when Atabul tried to remove the Taati of the complainant Bhagirathi from his grove. The exchange of abuses between Atabul and Smt. Kesri Devi added fuel to fire and Atabul departed, saying that he would deal with her. Soon he returned back with his gun and made fire shot. P.W. 3, Shanker Prasad, is a witness who stated that he had seen Smt. Kesri Devi and Atabul both returning back from the grove abusing each other.

Thus, bitterness between the parties before the incident is proved, but there was no immediate motive for the other accused to commit this crime, especially when it is not said that they were present at the time of heated exchanges in between Atabul and Smt. Kesri Devi. Thus the trial court has rightly come to the conclusion that four accused namely Ashik Ali, Abdul Haji, Rijwanulla, Mansoor Ali did not share any intention to commit murder or assault. It is said that they threw brick-bats and caused injuries to Ramdaras.

There was no formation of any unlawful assembly at ail. The question of the commission of the offence in prosecution of the common object of unlawful assembly did not arise at all. Therefore, the four accused have been correctly held not guilty of the charges u/s 147, 302/149 and Atabul has rightly been held not guilty for the charge u/s 148 IPC as well as u/s 302 I.P.C.

We find no good ground to interfere with the findings arrived at by the trial court The evidence has been judged in right perspective and the acquittal of the accused persons appears perfectly justified not requiring any interference by this court. The appeal has no force and it is liable to be dismissed. The conviction and setence passed against the respondent Atabul are confirmed.

The Government Appeal is dismissed.

Judgment be certified to the lower court. The CJN Deorea(sic) shall ensure that Atabul is arrested and lodged in jail to serve out the sentence passed against him. He shall report compliance within two months.