M.C. Jain, J.@mdashThese two criminal appeals arise out of the judgment and order dated 30.3.1979 passed by Sri K. P. Sinha, the then Vth Additional Sessions Judge, Fatehpur in Sessions Trial No. 71 of 1978. The appeals being connected with each other are being decided by this common judgment. Appellants in Criminal Appeal No. 1140 of 1979 are Naziruddin, Raisuddin and Ahmad Hasan, whereas Laddan alias Iqbal Hussain is the Appellant of Criminal Appeal No. 1359 of 1979. All of them have been convicted u/s 302 read with Section 34, I.P.C. and sentenced to life imprisonment.
2. The prosecution case, as unfolding from the F.I.R. and evidence adduced in the Court, may be narrated shortly. The incident took place on 6.10.1977 at 10 a.m. in village Mahoi, P.S. Hussainganj, district Fatehpur, and report was lodged the same day at 1 p.m. by Zahurul Hasan-P.W. 1 (brother of the deceased Nurul Hasan). The distance of the police station from the place of occurrence was about 7 miles. Anwarul Hasan brother of the informant and the deceased had been murdered in 1972 by Aftab and others. In 1973, Aftab and Ali Hasan were murdered. The complainant Zahurul Hasan and his brothers Nurul Hasan, Sariful Hasan and Saeedul Hasan were the accused in that double murder case. The accused in the murder case of complainant''s brother Anwarul Hasan were convicted in 1974. However, the complainant and his three brothers were acquitted on 11.7.1977, in the double murder case of Aftab and Ali Hasan. Ever since their acquittal, the family members of Aftab and Ali Hasan deceased became inimical towards them and were on a look out to murder them. On 6.10.1977 the complainant Zahurul Hasan and his brothers Sariful Hasan and Nurul Hasan had gone to irrigate their paddy crop in the east of the village. Nearby, Banney and Jagdish were cleaning their hemp. Nurul Hasan was going ahead and the complainant Zahurul Hasan and his other brother Sariful Hasan were following him. When Nurul Hasan reached the corner of the field towards the east of the ditch known as Bhujaran Gabiya, the accused Appellants Naziruddin and Raisuddin emerged with guns out of jwar field of Rashid situated in the east of the complainant''s paddy field and both of them fired at the exhortation of one of them-Naziruddin. His brother Nurul Hasan received gunshot injuries and ran towards south. Laddan alias Iqbal Husain and Ahmad Hasan came out of the paddy field from the southern side. Laddan alias Iqbal Husain was carrying the gun of his cousin brother Mohd. Hasan and Ahmad Hasan was carrying a lathi. Running, they challenged Nurul Hasan who turned towards the east and was chased by these two. Ahmad Hasan attacked him with lathi and when he was falling in the barren field of Panna Nai, Laddan alias Iqbal Husain fired from behind on the back of Nurul Hasan. The witnesses challenged the accused Appellants who ran towards the northern side. The occurrence was witnessed by the complainant Zahurul Hasan, his brother Sharifun Hasan, Banney P.W. 3, Ram Sewak P.W. 5 and Jagdish.
3. On the lodging of the F.I.R., a case was registered and investigation ensued at the hands of S.I. B. D. Verma P.W. 8 who proceeded to the spot and busied himself with the investigation including the preparation of inquest report. The dead body was ultimately sent for post-mortem which was conducted on 7.10.1977 at 2 p.m. by Dr. B. R. Bajpai P.W. 4. During the course of investigation it came to light that accused Appellants Raisuddin, Ahmad Hasan and Naziruddin had deposited their guns at the shop of M/s. Chet Ram Sharma and sons, Meston Road, Kanpur and on the order of District Magistrate, Kanpur, these guns were produced in the Court of Chief Judicial Magistrate by the aforesaid firm. Fired cartridges recovered from the place of occurrence were sent to the Ballistic Expert with these guns and report was received from him.
4. The result of the autopsy was that the deceased was found to be aged about 45 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:
(1) One gunshot wound of entry 1" - 1" - chest cavity deep on the left side back of chest, 2" below interior angle of scapula and at the same line. Margins were inverted and lacerated. Blackening and tattooing were present. Directed from behind to forward with fracture of 7, 8 and 9th ribs of left side in the back. 30 small gunshots were recovered from the muscles of left side chest front.
(2) Abraded contusion 4" - 3" on the left side scapular region with fracture of scapula bone underneath.
(3) Contusion 3" - 1-1/2" on the left side back of chest 1" below injury No. 2.
(4) Contusion 3" - 2" on the left side front of chest lower part with fracture of 10th and 11th ribs of left side front underneath.
(5) Abraded contusion 1" - 1/2" on the right side back of chest lower part.
(6) Multiple gunshot wounds of entry in an area of 4" - 3" on the dorsum of left hand, each measuring 1/10" - 1/10" - muscle deep. Margins inverted and lacerated. No blackening or tattooing present, with fracture of 2nd and 3rd metacarpal bones underneath. 15 small gunshots recovered from muscles.
(7) One Small gunshot wound of entry 1/10" - 1/10" - muscle deep on the right side dorsum of hand. Margins were inverted and lacerated. No blackening or tattooing present. One small gunshot from the muscle with fracture of 3rd metacarpal bone underneath., On internal examination, the pleura was found lacerated under injury No. 1 and one pound of blood was present below injury No. 1. Left lung was also found lacerated under injury No. 1 and 30 small pellets and wading pieces were recovered. Pericardium was lacerated under injury No. 1. Heart was lacerated in the middle and was empty. Semi-digested food was found in the stomach and some partially digested food was present in the small intestine. In the opinion of the Doctor, the death had occurred due to shock and haemorrhage as a result of gunshot injuries.
5. The prosecution in all examined 11 witnesses including the Doctor, Investigating Officer and other formal witnesses. The eye-witnesses were Zahurul Hasan P.W. 1-complainant, Banney P.W. 3 and Ram Sewak P.W. 5.
6. The defence was of denial and of false implication due to enmity. Two witnesses were examined in defence, namely, Gokaran Singh D.W. 1 and Ram Vishal, Judicial Assistant of the office of District Magistrate, Fatehpur D.W. 2. The evidence of the prosecution found favour with the learned trial court and the impugned judgment came to be rendered which is assailed in the instant two appeals.
7. We have heard Sri V. C. Tiwari, learned Counsel for the Appellants in two appeals and Sri G. S. Bisariya, learned A.G.A. appearing for the State. We have also gone through the record of the case which has been summoned before the Court. We intend to deal with the arguments raised from the side of the Appellants to assail the impugned judgment.
8. To begin with, it should be stated that though motive recedes into insignificance in a case of direct evidence like the present one, but in the instant case there was strong motive also on the part of the accused Appellants to commit the murder of the deceased. Motive, as is often said, heightens the probability. The four accused Appellants are closely related belonging to the same family. Naziruddin is the real uncle of Ahmad Hasan. Raisuddin is the real uncle of Naziruddin and Laddan alias Iqbal Husain is the son of Naziruddin. It is an admitted fact that there was deep rooted enmity between the two sides. Anwarul Husain-brother of the complainant was murdered in 1972 by Aftab and others. Aftab and Ali Hasan were murdered in 1973 and the complainant and his brothers Nurul Hasan, Shariful Hasan and Saidul Hasan were accused in that case. In the murder case of Anwarul Hasan-brother of the complainant, the accused were convicted in 1974. The complainant and his brothers, were acquitted in the murder case of Aftab and Ali Hasan on 11.7.1977. Thus, the relatives of the present accused Appellants were convicted for the murder of Anwarul Hasan-brother of the complainant but the complainant and his brothers were acquitted in the murder case of Aftab and Ali Hasan. It was, therefore, natural that accused Appellants were aggrieved and had strong motive to commit this offence to avenge themselves. It is also pertinent to state that present murder of Nurul Hasan was committed only after about three months of the acquittal of the complainant and others in the murder case of Aftab and Ali Hasan. To come to the point, there was strong motive on the part of the accused Appellants to commit the present crime of the murder of Nurul Hasan.
9. Coming to the arguments of the learned Counsel for the Appellants, it has first been argued by him that there was ante-clocking in the F.I.R. which has been manipulated to be shown as lodged on 7.10.1977 at 1 p.m. by Zahurul Hasan P.W. 1. He made reference to the statement of Ram Vishal, Judicial Assistant of the office of District Magistrate, Fatehpur D.W. 2, who stated that special report of this case was received on 7.10.1977 and it was put up before Sri R. K. Singh, Sub-Divisional Magistrate during the office hours of the day. We do not think that this simple fact justifies the conclusion that the F.I.R. was ante-timed. It is pertinent to state that the time when the special report was received is not noted on the report itself. It is clear from the statement of Head Constable Prem Chandra Dubey P.W. 7 that Chandra Bhushan Constable had started with the special report from the police station on 6.10.1977 at 5.15 p.m. It is obvious that he could not deliver the special report on that day because of his late arrival at the Headquarter. We also note from the testimony of head constable Prem Chandra Dubey P.W. 7 that a report of cognizable offence had been lodged at the police station on 6.10.1977 at 12.55 p.m. before the report of the present case. We are of the firm view that the entry in the G.D. and other relevant papers conclusively prove that the report of the present case was actually lodged at 1 p.m. on 6.10.1977. The inquest report itself was drawn on 6.10.1977 between 5 and 6 p.m. On careful analysis, it is not possible to accept the contention that the F.I.R. was ante-timed.
10. The second argument of the learned Counsel for the Appellants is that the eye-witnesses were not at all present at the spot and as such no reliance could be placed on their testimony. It would be recalled that the eye-witnesses were the complainant Zahurul Hasan P.W. 1, Banney P.W. 3 and Ram Sewak P.W. 5. The names of Banney P.W. 3 and Ram Sewak P.W. 5 are also mentioned as such in the promptly lodged F.I.R. As regards Zahurul Hasan P.W. 1. the submission is that it is improbable that no attempt was made on his life by the accused Appellants. It is urged that so far as the accused Appellants were concerned, this witness was equally bracketed with the deceased Nurul Hasan and with identical enmity qua them. Had he been present, he would not have been spared unharmed. Suffice it to say in this regard that it is not possible for the prosecution to adduce evidence as to how the mind of the culprit works at a particular time. It was not necessary that the accused Appellants must have thought of exterminating all their enemies in one go. At the time of the incident, they targeted, focussed and concentrated their attention and energy to liquidate one of their enemies, namely, Nurul Hasan and the simple fact that no injury was caused to the complainant Zahurul Hasan P.W. 1, cannot be taken to mean that he was not present at the spot. Moreover, Zahurul Hasan P.W. 1 did not intervene in the murderous assault by the accused Appellants on his brother Nurul Hasan and, therefore, he escaped unhurt. It has to be taken note of that he, the deceased and Shariful were going to their field to irrigate their paddy crop. More than one person are usually involved in irrigation activities. There is nothing unnatural that the three brothers were going for the said purpose. Rather their going together for irrigating the field was very well in the fitness of the work they had to engage in. He was then sought to be discarded on the ground that no firearm injury was sustained by the deceased in his stomach, whereas this witness stated that the shot opened by the accused Appellant Laddan alias Iqbal Husain had hit Nurul Hasan in his abdomen. This argument is factually wrong. We have checked it from the original statement of the witness recorded by the lower court. He clearly stated that when his brother Nurul Hasan was falling, Laddan alias Iqbal Husain fired on him from close range which hit him in the back. The deceased did receive a gunshot wound of entry on left side of back which is well consistent with the statement made by Zahurul Hasan P.W. 1 as well as by two other eye-witnesses. On careful consideration, we see nothing to cast cloud on the testimony of the complainant Zahurul Hasan P.W. 1, who has vividly described the details of the incident and has very well explained his presence at the spot.
11. As regards the eye-witness Banney P.W. 3, the criticism levelled by the learned Counsel for the accused Appellants is that he had no business to be present at the time of the incident. To explain his presence at the spot, the witness stated that he was washing hemp in bhujaran gabiya. There is no dispute that bhujaran gabiya is a pond/pool and there was water in it at the time of the incident. The statement of the witness is that he was washing hemp in the said pond when the incident took place. He admitted that he had no field near the place of occurrence and further that there were other ponds near his house and one was there at a distance of 20-25 paces from his house. He gave the reason for not washing hemp in that pond because that was utilized for drinking water by cattle and it was deep also. Learned Counsel for the Appellants contended that he was simply a chance witness and it is a false explanation given by him that he was washing hemp at bhujaran gabiya. Really speaking, the witness has explained as to why he did not wash his hemp in other ponds nearby his house. It is common knowledge that washing of rotten hemp gives out stinking smell with the result that the people avoid to wash such hemp near inhabitation and generally the pools which are away therefrom are used and availed of for that purpose.
12. The attack on the testimony of Ram Sewak P.W. 5 is also built on the premise that he was a chance witness. Indeed, a chance witness is one who should not normally be there where he professes to be. One may be a chance witness even at one''s own house, if for instance, at that hour, he should have been in his office. What is important is to judge the reason assigned by a particular person for being present at a particular spot. In the case at hand, Ram Sewak P.W. 5, who is named as a witness in the F.I.R. too, has given a plausible explanation for his presence at the spot that he was going to purchase a goat at Haswa market. He belongs to another village Malewa situate within the territorial jurisdiction of the same police station Hussain Ganj and was going to the market via Mahoi where the incident took place.
13. We note that Banney P.W. 3 or Ram Sewak P.W. 5 neither had any relationship with the complainant nor appeared to be under his influence. They had no enmity either with the accused Appellants. They have rightly been believed to be independent witnesses. The criticism against their testimony is unfounded and cannot be accepted.
14. Learned Counsel for the Appellants made reference to the statement of Lekhpal Gokaran Singh D.W. 1 who, with the help of khasra and khatauni entries, stated that there was no plot in the name of Rajjan near the place of occurrence and that there was no jwar or arhar crop in the field of Rashid. It would be recalled that as per the case of the prosecution the accused Appellants Naziruddin and Raisuddin had emerged out with guns from the jwar and arhar field of Rashid and it were they who had first opened fire on the deceased. Ahmad Hasan and Laddan alias Iqbal Husain accused Appellants had allegedly emerged out from the field of Rajjan when the deceased was running to south on being fired at by Naziruddin and Raisuddin. He had then turned to east. He was chased and assaulted by Ahmad Hasan with lathi and when he was falling in the field of Panna, Laddan alias Iqbal Husain opened fire on him which hit him in his back. It has been contended that the field of Rajjan not being there, there could be no question of two of the accused Appellants emerging therefrom, one with lathi and the other with gun and chasing, assaulting and shooting the deceased. It should be pointed out that the statement of Gokaran Singh Lekhpal, D.W. 1 simply based on entries did not show the factual position. He admitted in his cross-examination that plot No. 955 with an area of 13 bighas 19 biswas was recorded in the name of Nurul Hasan and others. He admitted that plot No. 564 was recorded as ''talab'' though it did not appear to be a talab (pond). He did not know whether Rajjan had another name as Juber Ahmad. He also admitted that the people make unauthorised occupation over the field of others and particularly, on the land of Gaon Samaj. The villagers make unauthorised possession and it does not come to light for long time. He did not know as to when the actual partal (survey) took place. The Investigating Officer had inspected the spot and had prepared a site plan. Though he did not give plot numbers but he had found paddy crops of Rajjan and others. Gokaran Singh Lekhpal, D.W. 1 had no personal knowledge. He was recently posted in that circle. Therefore, nothing could be inferred against the prosecution on the basis of the statement of Gokaran Singh D.W. 1.
15. We find that the ocular version of the incident coming forth through the three eye-witnesses well reconciles, with the medical evidence. The deceased in all received seven injuries out of which three were gunshot wounds and four other contusions/abraded contusions which could be caused by lathi wielded by one of the accused Appellants, namely, Ahmad Hasan. The fatal gunshot injury was inflicted by Laddan alias Iqbal Husain on the left side back of chest. It has come through the testimony of eye-witnesses that it was fired from a close range, which is corroborated by the presence of blackening and tattooing in this injury. The other two gunshot wounds had been received by him on the dorsum of left hand and dorsum of right hand. Each of the two accused Appellants Naziruddin and Raisuddin had fired on the victim in the beginning whereafter he had started running to the south and thereafter to the east when Laddan alias Iqbal Husan and Ahmad had emerged from the field of Rajjan. Injuries on both the hands were received by him when he was facing the accused Appellants Naziruddin and Raisuddin, who fired at him with their guns. It was just by providence that the shots opened by Naziruddin and Raisuddin did not hit any vital part of the deceased. The fatal shot was ultimately fired from close range by Laddan alias Iqbal Husain while the victim was falling in the field of Panna. So, the long and short of the discussion on this aspect of the matter is that there is complete harmony between the ocular testimony and medical evidence.
16. Having carefully considered all the arguments raised from the side of accused Appellants in the light of the evidence and attending circumstances, we are unable to locate any merit in any of them. It was a broad daylight murder. The F.I.R. was prompt. The accused Appellants had strong motive to commit this crime. The eye-witnesses are worthy of belief whose testimony finds corroboration from medical evidence too. Learned trial Judge has prepared an elaborate and reasoned judgment. We are in complete agreement with the finding of guilt recorded against the accused Appellants. The sentence of life imprisonment awarded to each of them is lesser out of the two alternative punishments provided for the offence of murder. Both the appeals are devoid of substance and are liable to be dismissed.
17. We hereby dismiss Criminal Appeal Nos. 1140 and 1359 of 1979. Conviction of the accused Appellants Naziruddin, Raisuddin, Ahmad Hasan (Appellants of Criminal Appeal No. 1140 of 1979) and Laddan alias Iqbal Hussain (Appellant of Criminal Appeal No. 1359 of 1979) u/s 302 read with Section 34, I.P.C. and sentence of life imprisonment awarded to each of them by the trial court are maintained. The Appellants are on bail. They shall be arrested and lodged in jail to serve out the sentence passed against them.
A certified copy of this order along with the record of the case be immediately sent to the court below for needful compliance under intimation to this Court within two months.
