Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : An Aggressor Has No Right Of Private Defence. Active Participation By Causing Injuries Is Not Essential To Attract Section 149 IPC.
JUDGEMENT TITLE : Munaf And Ors. Vs. State Of U.P. On 30/03/2009 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 2052 OF 1982
CORAM : Hon'ble Shiv Charan (Sharma),J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
RESERVED

Criminal Appeal No. 2052 Of 1982

Munaf & Others....................................Appellants

Vs.
State Of U.P..........................................Respondent

************************************

Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.

(Delivered By Hon'ble Vijay Kumar Verma,J).
This Appeal Is Directed Against The Judgment And Order Dated 29th June 1982, Passed By 2nd Additional Sessions Judge Meerut, In S.T. No. 642 Of 1976 (State Vs. Hameed & Others), Whereby Acquitting The Co-accused Hameed, Riyasat, Dilshad S/o Hakeem, Intizar, Ilyas And Abid, The Appellants-accused Munaf, Dilshad S/o Shabbir And Shakhawat Have Been Convicted And Sentenced To Undergo Imprisonment For Life Under Section 302 Read With Section 149 Indian Penal Code (in Short The 'IPC') And One Year's Rigorous Imprisonment Under Section 148 IPC. By The Same Judgment, The Appellants-accused Khalid And Bhoorey Have Also Been Convicted And Sentenced To Undergo Imprisonment For Life Under Section 302 Read With Section 149 IPC And Six Months' Rigorous Imprisonment Under Section 147 IPC. No Separate Sentence Under Sections 323 And 307 Both Read With Section 149 IPC Has Been Awarded In View Of The Sentence Under Section 302/149 IPC, Although These Appellants Were Charged Under Section 323/307 Read With Section 149 IPC Also.


2.During The Course Of Appeal, The Appellants-accused Munaf And Bhoorey Died And Hence The Appeal Against Them Has Abated.
3.Background Facts As Projected By The Prosecution, In A Nutshell, Are As Follows:-
The House Of The Complainant Aurangzeb S/o Yusuf Was Situated Adjacent To The House Of Hameed S/o Lateef In Mohallah Mausam Khani Of Kasba Kithore, Under The Jurisdiction Of P.S. Kithore, District Meerut. On 02.08.1976 In The Morning, Munaf And Bhoorey, Both Sons Of Hameed, Had Dug The Foundation With A View To Construct Their House. In The Process Of Digging The Foundation By Munaf And Bhoorey, The Wall Of The House Of The Complainant Fell Down. Shokin (deceased), Brother Of The Complainant, Lodged An FIR Regarding That Matter At P.S. Kithore. At That Time, The Complainant Was In Baghpat. He Was Called Next Day By Shokin. It Is Alleged That When On 03.08.1976 In The Morning, The Complainant Was Collecting People To Hold The Panchayat In The Matter Of Causing Damage To The Wall Of His House, The Accused Hameed, Munaf, Bhoorey, Abid, Khalid, Dishad S/o Hakeem, Intzar, Dilshad S/o Sabbir, Riasat, Shakhawat And Iliyas Assembled At The House Of Hameed And After Making Plan They All Ascended On His Roof. At That Time, The Accused Munaf And Dilshad S/o Shabbir Were Armed With Guns And Accused Sakhawat Was Having A Country Made Pistol (katta). Other Accused Were Having Bricks In Their Hands. Making Exhortation, The Accused Persons Began To Throw Bricks Indiscriminately Towards The House Of Complainant, Due To Which, Aurangzeb, His Brother Shokin And Yameen, Neighbour Noor Khan And Smt. Akbari Sustained Injuries. On This The Complainant And His Brother Shokin And Yameen Raising Noise Came Out From Their House And Ascended On The Roof Of The House Of Their Neighbour Akhlaq. On Hearing Hue And Cry, The Neighbour Tausif S/o Liyakat, Naqi S/o Lateef, Jameel S/o Mustaq Also Ascended On The Roofs Of Their Houses. Thereafter, The Accused Munaf, Dilshad And Shakhawat Fired Shots From Their Respective Fire Arms Towards The Complainant And Other Persons Of His Side, Due To Which Yameen, Shokin And Neighbour Noor Khan, Who Also Had Ascended On The Roof Of Akhlaq Along With Complainant, Sustained Fire Arm Injuries. The Complainant Saved Himself Taking The Side Of Munder. On Hearing The Noise Of Fires, Many People Of The Village Arrived There. Seeing Those People, The Accused Persons Came Down From The Roof And Fled Away. This Incident Had Happened At About 8.00 A.m. Further Case Of The Prosecution Is That Shokin Died During Treatment In District Hospital Meerut On 08.08.1976.
4.Carrying The Injured Persons, The Complainant Aurangzeb Went To P.S. Kithore And Handed Over Written Report Ext. Ka 1 There, Which Was Got Scribed From Tarif Ahmad S/o Abdul Waheed . On The Basis Of This Written Report, The Then Head Moharrir Ram Swaroop Prepared Chick FIR Ext. Ka 20 And Registered A Case Under Sections 147, 148, 149, 307 IPC At Crime No. 239/76 At 9.30 A.m. On 03.08.1976 Against The Accused Persons Named Above. Thereafter, The Injured Shokin, Noor Khan, Smt. Akbari And Yameen Were Sent For Medical Examination To Pyare Lal Sharma District Hospital Meerut, Where They Were Medically Examined By Dr. Dilawar Singh P.W. 7. The Following Injuries Were Found On The Person Of These Injured:-
1. Injuries Of Shaukin S/o Yusuf Vide Injury Report Ext. Ka-5 (medical Examination On 03.08.1976 At 10.30 A.m.):-

i. Gun Shot Wound (wound Of Entry) 1cm X 1cm X Deepth Not Proved. On (left) Side Chest In Post. Axillary Line .5cm Below The Axilla. Margins Are Inverted.
ii. Gun Shot Wound (wound Of Entry ) 1cm X 1cm On (left) Side Abdomen In Post Axillary Line Just Below The Costal Margin.
iii. Gun Shot Wound Wound Of Entry 0.5cm. X 0.5cm On (left) Side Abdomen 6 Cm. Anterior To Inj. No. (2).
iv. Gun Shot Wound 0.5cm X 0.3cm On (left) Side Back Upper Part 1.5 Cm. Away From Mid Line (wound Of Entry).
v. Gun Shot Wound (wound Of Entry) 1cm X 1cm On Back In Mid Line Lower Part.

2. Injuries Of Noor Khan S/o Chhotey Vide Injury Report Ext. Ka- 6 (Meidcal Examination On 03.08.1976 At 10.40 A.m.) :-

I. Gun Shot Wound (wound Of Entry) 1cm X 0.5cm In The (right) Axilla Blackening Present Around The Wound.
Ii. Gun Shot Wound (wound Of Entry) 1.5cm X 1cm On (right ) Side Chest 8 Cm Above The (right) Nipple.

3. Injuries Of Yameen S/o Yusuf Vide Injury Report Ext. Ka-8((Meidcal Examination On 03.08.1976 At 10.50 A.m.) :-

I. Lacerated Wound 1cm X 1cm X Scalp On (left) Side Head 8 Cm Above (left) Ear.
ii. Lacerated Wound 0.5cm X 1cm X Muscle On Outer & Lower Part Of (left) Upper Arm.
iii. Lacerated W. 0.5cm X 0.5cm X Skin By Side Of Injury (2).

4. Injuries Of Smt. Akbari W/o Haneef Vide Injury Report Ext. Ka-7((Meidcal Examination On 03.08.1976 At 11.30 A.m.):-

I. Lacerated Wound 2.5cm X 0.5cm X Bone On Middle Of Fore Head Below Hair Line.
Ii. Lacerated Wound 1cm X 0.5cm X Skin On Inner End Of (left) Eyebrow.
Iii. Abrasion 1cm X 0.5cm On Bridge Of Nose.

5.On The Same Day, Aurangzeb Was Medically Examined In District Hospital Meerut By P.W.6 Dr. S.L.M.C. Varshaney At 2.00 P.m. The Following Injuries Were Found On His Person Vide Injury Report Ext. Ka-4:-
I. A Contusion 2.5cm X 1cm On The Right Eyebrow.
Ii. A Lacerated Wound 2cm X 0.5cm X Muscle Deep On The Back Of Left Elbow Joint.
Iii. An Abrasion 1cm X 0.2cm On The Right Forearm Back Of Inner Side Just Near The Wrist Joint.

6.The Injured Shokin Was Admitted In The Hospital, Where His Dying Declaration Ext. Ka 21 Was Recorded By The Then Executive Magistrate Meerut Sri H.B. Pradhan P.W. 9 On 04.08.1976. He Died During The Course Of Treatment. After The Death Of Shokin On 08.08.1976, The Case Was Converted Under Section 302 IPC. On Receiving Information From The Hospital About The Death Of Shokin, Inquest Proceedings On His Dead Body Was Conducted By S.I. Suraj Singh P.W. 8 On 08.08.1976, During Which Inquest Report Ext. Ka 9 And Connected Papers Photo Lash And Chalan Lash Ext. Ka 10 And Ext. Ka 11 Respectively Were Prepared And Thereafter The Dead Body In Sealed Condition Was Sent For Post-mortem Examination, Which Was Conducted By Dr. Brij Narain P.W. 11 On 8.08.1976 At 2.30 P.m. According To The Post-mortem Report Ext. Ka 14, The Following Ante-mortem Injuries Were Found On The Person Of Deceased:-
1. Inlet Firearm Wound On Lateral Sid Of Left Side Of Chest. 10 Cm From Apex Of Axilla Size ¾ Cm.
2. Two Inlet Fire Arm Wound On Outer Side Of Abdomen 10 Cm. Apart Size ¾ Cm.

According To Dr. Brij Narain, The Deceased Had Died Due To Shock And Haemorrhage As A Result Of Anti-mortem Fire Arm Injuries.
7.The First Information Report Was Registered In Presence Of S.I. K.K. Sharma P.W. 5. The Investigation Of The Case Was Entrusted To Him. After Recording The Statement Of Head-moharrir Ram Swaroop, S.I. K.K. Sharma Went On The Place Of Incident And After Making Spot Inspection, Prepared Site Plan Ext. Ka 15. The Statements Of The Witnesses Were Recorded And Search Of The Accused Persons Was Made, But They Were Found Absconding From Their Houses. Thereafter, DBBL Licenced Gun No. 88701 Of The Accused Khalid And Nine Live Cartridges Were Taken Into Possession From His House In Presence Of His Mother And Recovery Memo Ext. Ka 3 Was Prepared In This Regard. Two Empty Cartridges Were Found Lying On The Roof Of The House Of Accused Hameed, Which Were Taken Into Possession And Fard Ext. Ka 13 Was Prepared. Thirty Brickbats Were Found Lying In The Sahan Of The House Of Haneef, Which Also Were Taken Into Possession And Fard Ext. Ka 14 Was Prepared In This Regard. Blood Stained Clothes Of Yameen, Shokin And Noor Khan Were Also Taken Into Possession And Fard Ext. Ka 2, Ext. Ka 16 And Ext. Ka 17 Were Prepared. Other Formalities Regarding Investigation Were Also Made And After Completion Of Investigation, Charge-sheet Ext. Ka 18 Was Submitted Against All The Eleven Accused.
8.Licenced Gun Of Accused Khalid And Recovered Two Empty Cartridges Were Sent For Examination To Forensic Science Laboratory U.P. Lucknow. Ext. Ka 23 Is The Report Of Ballistic Expert, According To Which, The Empty Cartridges Were Fired From This Gun.
9. On The Case Being Committed To The Court Of Session For Trial, Charge Under Sections 147 And 302/307/323 All Read With Section 149 IPC Against The Accused Hameed, Bhoorey, Abid, Khalid, Dilshad S/o Hakim, Intajar, Iliyas And Riyasat And Separate Charge Under Sections 148 And 302/ 307/323 All Read With Section 149 IPC Against The Accused Munaf, Dilshad S/o Shabbir And Shakhawat Were Framed, To Which They Pleaded Not Guilty And Claimed To Be Tried.
10. The Prosecution In Order To Bring Home The Charges To The Accused Persons Examined Eleven Witnesses In All. P.W. 1 Aurangzeb Is The Complainant, Who Had Lodged The First Information Report Regarding The Incident. He Is Injured Also. P.W. 2 Noor Khan Is Also Injured. PW.. 3 Mohd. Naqi Is The Eyewitness Of The Incident. P.W. 4 Constable Sheo Lal Singh And Another Constable Mahendra Singh Had Carried The Dead Body Of Deceased Shokin To Mortuary Meerut For Post-mortem Examination. P.W. 5 S.I. K.K Sharma Is The Investigating Officer, Who Has Proved Various Papers Which We Have Mentioned Herein-above. P.W. 6 Dr. S.L.M.C. Varshney And P.W. 7 Dr. Dilawar Singh Had Conducted Medical Examination Of The Injured Persons. They Have Proved The Injuries Of The Injured And Injury Reports Ext. Ka 4 To Ext Ka 8. P.W. 8 S.I. Suraj Singh Has Proved Inquest Report Ext. Ka 9 And Connected Papers Ext. Ka 10 And Ext. Ka 11. Copy Of G.D.No. 42 Ext. Ka 12 Also Has Been Proved By This Witness. In This G.D. Information Regarding The Death Of Deceased Shokin Was Lodged. P.W. 9 Hari Bahadur Pradhan Has Proved Dying Declaration Ext. Ka 21 Of Shokin. P.W. 10 Om Prakash Tripathi Is The Ballistic Expert, Who Has Proved His Report Ext. Ka 23. P.W. 11 Dr. Braj Narain Has Proved Post Mortem Report Ext. Ka 24.
11. In Their Statements Recorded Under Section 313 Cr.P.C., The Accused Persons Denying Prosecution Allegations Have Stated That All The Witnesses Are Of The Same Family And Due To Enmity, They Have Falsely Deposed Against Them.
12. In Their Defence, The Accused Persons Have Examined D.W. 1 Shaukat And D.W. 2 Faiyaz. D.W.1 Shaukat Has Stated That The Witness Naqi And Taqi Were Real Brothers. Taki Has Died. His Daughter Naseem Was Kidnapped By Lala, Who Is Cousin Brother Of Shakhawat. Naseem Had Come Back After About Eight Days. A Panchayat Was Convened In That Context. In That Panchayat, Naseem Was Handed Over To His Father Taqi, Due To Which The Relations Of Shakhawat And Naqi Became Strained. D.W. 2 Faiyaz Has Stated That Naseem And Lala Had Married And He Was Witness Of Their Nikah. Nikahnama Ex. Kha 3 Has Been Proved By This Witness.
13. Spot Inspection Was Also Made By The Learned Trial Judge On 06.04.1982 On The Request Of Parties. Inspection Note Prepared By The Learned Trial Judge Is Available In Lower Court Record, Which Is Paper No. 91 Ka / 2.
14. The Learned Trial Court Having Taken The Entire Evidence Into Consideration, Convicted And Sentenced The Accused-appellants Only And Acquitted Rest Accused Persons As Mentioned Herein-above In Para-1. Hence This Appeal.
15.We Have Heard Sri Gopal Chaturvedi And Sri V.P. Srivastava, Senior Advocates Appearing For The Appellants And Learned AGA For The State And Carefully Perused The Entire Evidence And Other Material On Record Including Impugned Judgment.
16. Regarding Happening Of The Incident, The Prosecution Has Examined Three Witnesses Including Two Injured, Namely, Aurangzeb (P.W.1) And Noor Khan (P.W.2). Third Witness Is P.W. 3 Mohd. Naqi. After Making Detailed Scrutiny Of The Evidence Of These Witnesses And Taking Into Consideration Other Material On Record, The Learned Trial Court Has Convicted The Appellants-accused For Committing The Murder Of Shokin And Causing Injuries To Other Injured Persons. P.W. 1 Aurangzeb Had Lodged The FIR Of This Case On 03.08.1976 At P.S. Kithore. The Incident Is Said To Have Happened At About 8.00 A.m. On That Day And FIR Was Lodged At 9.30 A.m. On The Same Day. Statement Of P.W. 1 Aurangzeb Was Recorded In Trial Court On 13.07.1979. Regarding The Incident, Aurangzeb Has Stated That Deceased Shokin Was His Real Brother. He And Shokin Were Living In The Same House, Which Is Situated Adjacent To The House Of Accused Hameed. It Is Further Stated By This Witness That About 3 Years Ago, The Accused Hameed, Munaf And Bhoorey With A View To Construct Their House Had Dug Their Foundation, Due To Which His Wall Fell Down. On This, His Brother Shokin Had Lodged FIR Regarding That Incident At The Police Station. P.W. 1 Has Further Stated That He Was In Bhaghpat On That Day. Next Day He Was Called From Bhaghpat By His Brother And When In The Morning, He Was Collecting People To Hold The Panchayat, The Accused Hameed, Munaf, Bhoorey, Abid, Dilshad S/o Shabbir, Khalid, Iliyas, Riyasat, Dilshad S/o Abdul Hakeem, Intazar And Shakhawat Attacked On Them. These Accused Ascended On The Roof Of The House Of Accused Hameed. At That Time, The Accused Mufaf And Dilshad Were Armed With Guns And Shakhawat Was Having Desi Katta And Other Accused Persons Were Having Bricks. It Is Further Stated By The Witness That At About 8.00 A.m. These Accused Hurling Abuses Began To Throw Bricks Towards His House Saying That They Would Taught Lesson Of Lodging The Report. It Is Further Stated By Aurangzeb That Due To Throwing Bricks By Accused Persons, He And His Brothers Shokin And Yameen As Well As His Neighbour Smt. Akbari And Noor Khan Sustained Injuries And Thereafter He And Other Persons Of His Side Making Noise Ascended On The Roof Of The House Of Akhlaq, Which Is Also Situated Adjacent To His House. On Hearing Hue And Cry, The Witnesses Safi, Naqi, Tausif, Jameel And Noor Khan Also Ascended On The Roofs Of Their Houses. Thereafter Also, The Accused Persons Continued To Throw Bricks Towards Them. It Is Also Stated By P.W.1 That Bricks Which Were Thrown Towards Them By The Accused Persons Were Thrown In Return By Them Towards The Accused Persons, On Which The Accused Munaf, Dilshad And Shakhawat Fired From Their Respective Weapons, Due To Which His Brother Yameen And Shokin Sustained Fire Arm Injuries. Aurangzeb Has Further Stated That He Got The Written Report Ext. Ka 1 Scribed At His House And Carrying The Injured Persons Went To P.S. Kithore And Lodged The FIR There. It Is Also Stated By This Witness That Statement Of Shokin Was Recorded By The Magistrate In The Hospital.
17. P.W 2 Noor Khan Also Had Sustained Firearm Injuries In The Aforesaid Incident. His Statement In Trial Court Was Recorded On 01.08.1979. Regarding The Incident, Noor Khan Has Stated That About 3 Years Ago At About 8.00 A.m., On Hearing Noise He Came In His Sahan And Saw The Accused Abdul Hameed, Munaf, Bhoorey, Abid, Khalid, Hazi Iliyas, Riyasat, Dilshad S/o Sabbir, Dilshad S/o Hakeem, Shakhawat And Intajar On The Roof Of Abdul Hameed. At That Time Shakhawat Was Having Desi Katta In His Hand And Dilshad And Munaf Were Armed With Their Licenced Guns And Rest Accused Were Having Bricks And Brickbats In Their Hands. It Is Further Stated By The Witness That The Accused Persons Were Throwing Bricks And Brickbats Indiscriminately, Which Fell Down In The Houses Of Aurangzeb And Akbari. It Is Also Stated By The Witness That Thereafter Yameen, Shokin And Aurangzeb Ascended On The Roof Of The House Of Akhlaq And He Also Reached There. It Is Further Stated By P.W.2 Noor Khan That The Accused Munaf, Dilshad And Shakhawat Fired From Their Respective Weapons, Due To Which He As Well As Yameen And Shokin Sustained Firearm Injuries. It Is Also Stated By The Witness That When Village People Gathered And Ascended On The Roofs Of Their Houses, Then Accused Persons Came Down And Fled Away.
18. Third Witness Regarding The Incident Is Mohd. Naqi, Who Was Examined On 26.10.1979 As P.W. 3. He Is Independent Witness. Regarding The Incident, P.W. 3 Has Stated That About 3 ¼ Year Ago At About 8.00 A.m., He Heard Noise From The House Of Aurangzeb Etc., On Which He Ascended On The Roof Of His House And Saw That The Accused Abdul Hameed, Munaf, Bhoorey, Abid, Khalid, Dilshad, Hazi Iliyas, Riyasat, Sakhawat, Dilshad S/o Abdul Hakeem And Intjar Were Present There On The Roof Of The House Of Hameed And At That Time Sakhawat Was Armed With Desi Katta And The Accused Dilshad S/o Sabbir And Munaf Were Having Guns In Their Hands And Other Accused Were Having Bricks, Who Were Throwing Them Towards The House Of Aurangzeb. It Is Further Stated By This Witness That Auranjeb, Yameen, Noor Khan And Shokin Ascended On The Roof Of The House Of Akhlak And They Were Praying To The Accused To Show Mercy On Them, But The Accused Shakhawat Fired From Tamancha And Accused Munaf Etc. Also Fired From Their Guns Towards Aurangzeb, Due To Which Shokin, Noor Khan And Yameen Sustained Fire Arm Injuries.
19. The Witnesses Aurangzeb, Noor Khan And Mohd. Naqi Were Subjected To Lengthy Cross-examination, But Nothing Could Be Elicited From Their Mouth So As To Discard The Credit Worthiness Of Their Statements And Even Searching Cross-examination Could Not Shatter Their Testimony. The Ocular Evidence Of These Witnesses Is Corroborated In Material Particulars By Medical Evidence. Being The Injured, Presence Of P.W.1 Aurangzeb And P.W.2 Noor Khan At The Time Of Incident Cannot Be Doubted. They Both Are Wholly Reliable Witnesses And On The Basis Of Their Testimony It Is Fully Proved Beyond Reasonable Doubt That They As Well As The Deceased Shokin And Injured Akbari And Yameen Had Sustained Injuries At The Hands Of Accused Persons In The Incident Which Occurred On 03.08.1976 At About 8.00 A.m. It Is Also Fully Proved On The Basis Of Trust Worthy Oral Evidence That In That Incident, The Accused Munaf, Dilshad S/o Sabbir And Shakhawat Used Fired Arms, Whereas All Other Accused Threw Bricks And Brickbats Towards The Houses Of Injured Persons, Thereby Causing Injuries To Them And Deceased Shokin.
20. The Testimony Of Aforesaid Witnesses Is Corroborated From The Medical Evidence. We Have Mentioned The Injuries Herein-above, Which Were Found On The Person Of Deceased And Injured Persons. Injury Reports Ext. Ka 5 And Ext. Ka 6, Show That Shokin And Noor Khan Had Sustained Fire Arm Injuries. The Injured Aurangzeb, Akbari And Yameen Had Also Sustained Injuries Vide Injury Reports Ext. Ka 4, Ext. Ka 7 And Ext. Ka 8. Injuries Of These Persons Have Been Described To Have Been Caused By Some Blunt Object. Injuries Of All These Persons Have Been Duly Proved By Dr. S.L.M.C. Varshnev And Dr. Dilawar Singh. According To Dr. Dilawar Singh P.W. 7, The Injuries Of Smt. Akbari And Yameen Were Possible To Be Caused By Some Blunt Object Like Bricks On 03.08.1976 At About 8.00 A.m. Regarding The Injuries Of Noor Khan, Dr. Singh (P.W. 7) Has Stated That His Injuries Were Caused By Some Fire Arm. Although In The Injury Report Ext. Ka 8 Of Yameen, It Is Not Specifically Stated That His Injuries Were Caused By Fire Arm, But The Dimension Of His Injuries Indicates That These Injuries Were Caused By Pellets. According To The Witness Aurangzeb And Mohd. Naqi Also, The Injured Yameen Had Sustained Pellets' Injuries. The Witness Noor Khan Also Has Stated That Yameen Had Sustained Pellets' Injuries. In This Way, On The Basis Of Oral And Medical Evidence It Is Fully Proved Beyond Reasonable Doubt That In The Incident Which Occurred On 03.08.1976 At About 8.00 A.m. In Kasba Kithore, The Deceased Shokin, Injured Noor Khan And Yameen Had Sustained Fire Arm Injuries, Whereas Aurangzeb And Akbari Sustained Injuries Due To Throwing Bricks By The Accused Persons. As A Result Of Fire Arm Injuries, Shokin Died In The Hospital. Post-mortem Report Ext. Ka 24 Shows That The Deceased Shokin Had Died Due To Shock And Haemorrhage Caused By Ante-mortem Fire Arm Injuries.
21. On The Basis Of The Statement Of Investigating Officer S.I. K.K. Sharma P.W. 5, The Licenced DBBL Gun No. 88701 Of Accused Khalid Was Taken Into Possession From His House In Presence Of His Mother. Recovery Memo Ext. Ka 3 Was Prepared In This Regard, Which Has Been Duly Proved By P.W. 5. Two Empty Cartridges Of 12 Bore Were Recovered At The Time Of Spot Inspection By P.W.5 From The Roof Of The House Of Accused Hameed Vide Recovery Memo Ext. Ka 13. Those Recovered Empty Cartridges And Licenced Gun Of Khalid Were Sent For Examination To Forensic Science Laboratory Uttar Pradesh, Lucknow. Ext. Ka 23 Is The Report Of Ballistic Expert, According To Which, Both The Recovered Empty Cartridges Were Fired From DBBL Gun No. 88701. It Appears That This Licenced Gun Of Khalid Was Used By The Accused Munaf, Who Has Since Died. The Accused Dilshad S/o Shabbir Was Also Licence Holder Of Gun. Although In The FIR It Is Not Clarified As To Which Dilshad Was Armed With Gun, But On The Basis Of Oral Evidence It Is Established That Dilshad S/o Shabbir Had Fired From Gun In The Incident. It Is Specifically Stated By P.W. 3 Mohd. Naqi That Dilshad S/o Shabbir Was Having A Gun In His Hand. This Matter Has Been Dealt With In Detail In Impugned Judgment By The Learned Trial Judge And It Is Held That It Was The Accused Dilshad S/o Shabbir Who Fired From Gun In The Incident.
22. Regarding The Conviction Of The Appellant Khalid, It Was Submitted By His Counsel Sri Gopal Chaturvedi, Senior Advocate, That Extending The Benefit Of Doubt Six Accused, To Whom The Role Of Throwing Bricks Was Assigned, Have Been Acquitted By The Learned Trial Court And Hence, Benefit Of Doubt Should Be Extended To The Appellant Khalid Also, Because No Specific Role Has Been Attributed To This Accused. The Contention Of Sri Chaturvedi Was That General Role Of Throwing Bricks And Brickbats Was Attributed To Eight Accused Including The Appellant Khalid, Out Of Which Six Accused Have Already Been Acquitted By The Learned Trial Court And Hence The Appellant Khalid Also Is Liable To Be Acquitted On The Principle Of Parity. It Was Also Submitted By The Learned Counsel For The Appellants That In Dying Declaration Ext. Ka 21 Also, No Specific Role Has Been Assigned To The Accused Khalid, Although Role Of Firing Has Been Specifically Attributed To The Accused Munaf, Dilshad And Shakhawat.
Having Given Our Thoughtful Consideration To The Entire Matter, We Find Ourselves Unable To Agree With Aforesaid Contention Of The Learned Counsel For The Appellants. It Is True That Role Of Throwing Bricks Towards The House Of Aurangzeb Was Attributed To Eight Accused Including The Appellant Khalid, Out Of Whom Six Accused Have Been Acquitted By The Trial Court Giving Them Benefit Of Doubt, But In Our Opinion The Learned Trial Judge Has Committed Gross Illegality In Acquitting Those Six Accused And Hence Applying The Principle Of Parity We Are Not Inclined To Extend The Benefit Of Doubt To The Appellant Khalid. We Have Carefully Gone Through The Impugned Judgment To Apprise Ourselves About The Reasons For Acquitting Six Accused, Who Were Also Attributed The Role Of Throwing Bricks Towards Injured Persons. In Our Considered Opinion, The Learned Trial Court Without Assigning Sufficient Reason Has Extended The Benefit Of Doubt To The Six Acquitted Accused, Because There Is Consistent And Wholly Reliable Evidence On Record To Show The Complicity Of All The Accused Persons In The Incident. All The Acquitted Six Accused And Appellants Khalid And Bhoorey Had Actively Participated In The Incident By Throwing Bricks Towards The House Of Aurangzeb. Therefore, In Our Opinion, Being The Members Of Unlawful Assembly, Acquitted Six Persons Were Also Liable To Be Convicted And Sentenced For The Offences Punishable Under Section 147 And 302/307/323, All Read With Section 149 IPC, As Their Presence As Member Of Unlawful Assembly On The Roof Of Accused Hameed And Active Participation In The Incident Is Fully Proved On The Basis Of Reliable Evidence Of P.W.1, P.W.2 And P.W.3. The Hon'ble Apex Court Has Consistently Laid Down In Numerous Decisions That Overt Act Is Not The Requirement Of Law To Attract Section 149 IPC And Presence Of Accused As Part Of Unlawful Assembly Is Sufficient For Conviction Even If No Overt Act Is Imputed To Him. See Yunis @ Karia Etc Vs. State Of M.P. AIR 2003 SC 539, Bhargavan And Others Vs. State Of Kerala 2004 Cri. L.J. 646 (SC), Shri Gopal And Another Vs. Subhash And Others 2004 (48) ACC 618 (SC), State Of Maharasthra Vs. Kashi Rao And Others, 2003 Cri. L.J. 4464 (SC) And Ram Dular Rai And Others Vs. State Of Bihar 2004 (48) ACC 228 (SC). The Acquitted Accused Were Not Mere Onlookers, But They Were Members Of Unlawful Assembly And They Also Had Taken Active Part In The Incident By Throwing Bricks Thereby Causing Injuries To The Injured Aurangzeb And Smt. Akbari. Therefore, The Learned Trial Judge Was Not Justified In Acquitting Six Accused On The Basis Of Fanciful Benefit Of Doubt. However, Since The State Of U.P. Has Not Preferred Appeal Against Their Acquittal, We Are Unable To Convict The Acquitted Accused, But In Our Considered Opinion, The Benefit Of Their Acquittal Can Not Be Granted To The Appellant Khalid.
Move-over, As We Have Stated Herein-above, The Licenced Gun Of Khalid Was Used In The Incident. It Has Come In The Evidence That The Accused Dilshad S/o Shabbir Was Also Licence Holder Of Gun And He Also Had Fired In The Incident From Gun. He Might Have Fired From His Licenced Gun. Accused Khalid Himself Did Not Fire From His Licenced Gun, But His Gun Was Used In The Incident And Shots Were Fired From That Gun. On The Basis Of Reliable Testimony Of P.W.1, P.W.2 And P.W.3, It Is Fully Proved That In Addition To The Accused Shakhawat And Dilshad S/o Shabbir, The Accused Munaf Also Had Fired From Gun. No Other Accused Fired From Any Fire Arm. It Appears That Instead Of Himself Firing From His DBBL Licenced Gun, The Accused Khalid Had Given That Gun To The Accused Munaf, Who Fired From That Gun. Therefore, Having Regard To All These Facts, In Our Considered Opinion, The Accused Khalid Is Not Entitled To Get Any Benefit From The Acquittal Of Some Accused.
23. Regrading The Complicity Of The Appellant Dilshad S/o Shabbir, It Was Contended By His Learned Counsel That Two Persons Of The Name Of Dilshad Were Nominated In The FIR, But Their Father's Name Has Not Been Mentioned And Hence Benefit Of Doubt Should Be Given To The Appellant Dilshad Also. We Have Already Held That It Was The Accused Dilshad S/o Shabbir, Who Had Fired From Gun In The Incident. The Learned Trial Court Has Drawn Right Conclusion In This Regard And Hence, We Are Not Inclined To Extend Any Benefit Of Doubt To The Appellant Dilshad S/o Shabbir.
24. Sri V.P. Srivastava, Senior Advocate, Appearing For The Appellant Shakhawat Vehemently Contended That Injuries To The Deceased And Injured Persons Were Caused By The Accused Persons In The Right Of Private Defence And Hence The Appellants Are Liable To Be Acquitted On This Ground. The Contention Of Shri Srivastava Was That Injured Aurangzeb And Other Persons Of His Side Were Also Throwing Bricks Towards The Accused Persons And Hence The Appellants-accused Had Right Of Private Defence And Since The Injuries To The Deceased And Injured Persons Were Caused In Exercise Of The Right Of Private Defence Of Person By The Accused Persons, Hence No Offence Against Them Is Made Out. We Find No Force In This Contention. On The Basis Of The Oral Evidence Of The Witnesses Aurangzeb, Noor Khan And Mohd. Naqi, It Is Established That The Accused Persons Were Aggressors, Who After Forming An Unlawful Assembly Ascended On The Roof Of The House Of The Accused Hameed And Began To Throw Bricks Towards The House Of Aurangzeb. Although, It Has Come In The Evidence That Persons From The Side Of Aurangzeb Also Threw Bricks In Return Towards The Accused Persons, But It Is Fully Proved Beyond Reasonable Doubt That The Accused Persons Were Aggressors, Who Started To Throw Bricks Towards The House Of Injured Persons. It Is Well Settled Principle Of Criminal Law That Aggressor Has No Right Of Private Defence. If Any Authority Is Required For This Settled Proposition Of Law, It May Be Seen In The Cases Of Kashmiri Lal & Others Vs. State Of Punjab AIR 1997 SC 393 And Bishna @ Bhiswa Deb Mahato And Others Vs. State Of West Bangal (2005) 12 SCC 657. Therefore, In Our Considered Opinion, The Appellants Accused Also Cannot Claim Benefit Of Right Of Private Defence In Present Case, Because They Were Aggressors And Without Any Reason, After Forming An Unlawful Assembly, They Started To Throw Bricks Towards The Houses Of Injured Persons.
25. Next Submission Made By Sri V.P. Srivastava, Senior Advocate, Was That Offence Under Section 302 IPC Is Not Made Out In This Case, Because There Was No Intention To Cause The Death Of Deceased. The Contention Of The Learned Counsel Was That Firing On The Deceased Was Made From Distance, Which Shows That Intention Of The Accused Persons Was Only To Cause Hurt To The Deceased Shokin To Teach Him A Lesson Of Lodging The FIR On 02.08.1976 And They Had No Intention To Kill Him And Hence The Case Would Not Travel Beyond Section 304 Part (i) Or Part (ii). Having Gone Through The Injuries Which Were Found On The Person Of Deceased, We Are Not Impressed With This Contention Of Sri Srivastava. The Injury Report Of Shokin Ext. Ka 5 Shows That Fire Arm Injuries On Vital Parts Of His Body Were Caused. As Many As Five Gun Shot Wounds Were Found On The Person Of Deceased At The Time Of His Medical Examination On 03.08.1976 By Dr. Dilawar Singh. According To The Post-mortem Report Ext. Ka 24, The Deceased Died Due To Shock And Haemorrhage Caused By Ante-mortem Fire Arm Injuries Sustained By Him. Two Shots Were Recovered From Inside The Body Of Deceased At The Time Of Post-mortem Examination. Therefore, Having Regard To The Nature Of Injuries Sustained By The Deceased Shokin, In Our Opinion, Clause 'thirdly', To Section 300 IPC Is Attracted In This Case. For The Sake Of Convenience, Section 300 IPC Is Reproduced Below:-
300. Murder- Except In The Cases Hereinafter Excepted, Culpable Homicide Is Murder, If The Act By Which The Death Is Caused Is Done With The Intention Of Causing Death,or
Secondly- If It Is Done With The Intention Of Causing Such Bodily Injury As The Offender Knows To Be Likely To Cause The Death Of The Person To Whom The Harm Is Caused, Or
Thirdly- If It Is Done With The Intention Of Causing Bodily Injury To Any Person And The Bodily Injury Intended To Be Inflicted Is Sufficient In The Ordinary Course Of Nature To Cause Death, Or
Fourthly- If The Person Committing The Act Knows That It Is So Imminently Dangerous That It Must, In All Probability, Cause Death Or Such Bodily Injury As Is Likely To Cause Death, And Commits Such Act Without Any Excuse For Incurring The Risk Of Causing Death Or Such Injury As Aforesaid.

26. It Is Apparent From Clause 'thirdly' To Section 300 IPC That If The Act By Which Death Is Caused Is Done With The Intention Of Causing Bodily Injury To Any Person And The Bodily Injury Intended To Be Inflicted Is Sufficient In The Ordinary Course Of Nature To Cause Death And If Any Of The 'Exceptions' Mentioned In Section 300 IPC Is Not Applicable, Then In Such Case, The Accused Would Be Guilty Of Committing The Offence Of Murder. Five Exceptions Are Given In Section 300 IPC. None Of These 'Exceptions' Is Applicable In Present Case, Because The Accused Persons After Making Pre-plan And Forming An Unlawful Assembly Without Any Reason Threw Bricks Towards The House Of Complainant And The Appellants-accused Munaf, Dilshad S/o Shabbir And Shakhawat Fired From Their Respective Fire Arms, Thereby Causing Fatal Injuries To The Deceased Shokin. Therefore, The Appellants-accused Are Not Entitled To Get Benefit Of Any 'Exception' To Section 300 IPC. In Our Opinion, The Injuries Caused To The Deceased Shokin Were Sufficient In The Ordinary Course Of Nature To Cause Death And As A Result Of Those Injuries, He Died On 08.08.1976 In The Hospital. The Deceased Shokin Had Lodged An FIR On 02.08.1976 Against The Accused Munaf And Bhoorey, By Whose Act The Wall Of His House Had Collapsed At The Time Of Digging The Foundation By Them With A View To Construct Their House. Lodging Of FIR By The Deceased Shokin Certainly Might Have Caused Annoyance To The Accused Munaf And Bhoorey And He Appears To Be The Target Of The Accused Persons At The Time Of Firing Shots And It Was For This Reason That He Was Caused More Injuries In Comparison To The Injured Noor Khan And Yameen. When The Accused Having Firearms Were Firing Shots In The Incident, They Certainly Intended To Cause Bodily Injury To Any Person, Because The Shots Were Not Fired In The Air. By Firing Shots On The Deceased, The Accused Persons Having Fire Arms Certainly Intended To Cause Bodily Injuries To Him And Since The Injuries Caused To The Deceased Were Sufficient In The Ordinary Course Of Nature To Cause Death, Hence, In Our Considered Opinion, Clause 'thirdly' To Section 300 IPC Is Squarely Attracted In Present Case. Four 'Illustrations' Are Given In Section 300 IPC. 'Illustration (C )' Is Relevant In This Context Which Reads Thus:-
(C )- A Intentionally Give Z A Sword-cut Or Club-wound Sufficient To Cause The Death Of A Man In The Ordinary Course Of Nature. Z Dies In Consequence. Hence, A Is Guilty Of Murder, Although He May Not Have Intended To Cause Z's Death.

The Principle Embodied In The Afore-cited 'illustration' Would Apply In Present Case Also, Because The Accused Persons Having Fire Arms Intentionally Caused Bodily Injuries To The Deceased Shokin, Which Were Sufficient To Cause The Death Of A Person In The Ordinary Course Of Nature And In Consequence Of Those Injuries, Shokin Died In The Hospital During Treatment. Hence In Present Case, The Appellants-accused Would Be Guilty Of Committing The Murder Of Deceased, Although They Might Not Have Intended To Cause His Death.
27. Regarding The Dying Declaration Of Deceased Shokin, It Was Contended By Learned Counsel For The Appellant Shakhawat That There Is Inconsistency In The FIR Version And Dying Declaration Regarding The Place Of Incident And Hence On This Ground, The Prosecution Case Becomes Doubtful. It Was Also Submitted By Senior Advocate Sri V.P. Srivastava That This Dying Declaration Is The Result Of Tutoring, As At The Time Of Recording The Statement Of Shokin By The Magistrate, His Family Members Remained Present With Him Through Out In The Hospital. It Was Also Submitted By Sri Srivastava That Certificate Of Doctor About Physical And Mental Fitness Of The Deceased At The Time Of Giving Statement Was Not Obtained Prior To Recording The Dying Declaration And Hence On This Ground Also, It Is Not Safe To Place Reliance On The Dying Declaration Ext. Ka 21. Although There Is No Material Inconsistency About The Place Of Incident In The Dying Declaration And FIR, But Without Making Any Comment About The Contentions Raised By Sri Srivastava In Respect Of Dying Declaration Ext. Ka 21, It Is Suffice To Say That If Accepting The Arguments Of The Learned Counsel, The Dying Declaration Is Not Taken Into Consideration, Then Also On The Basis Of The Oral Evidence, Which Is Supported By Medical Evidence, It Is Fully Proved Beyond Reasonable Doubt That All The Accused Persons After Forming An Unlawful Assembly On 03.08.1976 At About 8.00 A.m. In Kasba Kithore, Assembled On The Roof Of The House Of Accused Hameed And In Prosecution Of The Common Object Of That Assembly, They All Not Only Threw Bricks Thereby Causing Injuries To Aurangzeb, And Smt. Akhbari, But The Appellants-accused Munaf, Dilshad S/o Shabbir And Shakhawat Fired Shots From Their Respective Firearms Thereby Causing Injuries To Shokin, Noor Khan And Yameen, As A Result Of Which Shokin Subsequently Died During Treatment In The Hospital.
28. It Was Also Submitted By Sri V.P. Srivastava Learned Counsel For The Appellant Shakhawat That Injuries To The Deceased Or Injured Persons Cannot Be Caused By Country-made Pistol And Since According To The FIR Version And Statement Of The Witnesses, The Accused Shakhawat Is Said To Be Armed With Country-made Pistol (katta), Hence His Presence At The Time Of Incident Becomes Doubtful. The Contention Of Sri Srivastava Was That Shots Are Said To Have Fired From A Distance Of About 15-20 Paces And If Shots Are Fired From Such Distance By Tamancha, Then Injuries Would Not Be Caused Either To The Deceased Or Injured. We Are Not Impressed With This Submission Also. When The Shots Were Fired In The Rioting, Then It Is Very Difficult To Tell Exact Distance Of Firing Shots. On The Basis Of Reliable Testimony Of Witnesses Auranzeb, Noor Khan And Mohd. Naqi, It Is Fully Proved Beyond Reasonable Doubt That The Appellant Shakhawat Participated In The Incident And At That Time He Was Armed With A Country-made Pistol From Which He Fired Shots From The Roof Of The House Of Hameed Towards Aurangzeb And Other Persons Of His Side, Who Were Standing On The Roof Of The House Of Akhlak. Therefore, If For The Sake Of Argument It Is Assumed That The Shots Fired By The Accused Shakhawat Did Not Cause Any Injury Either To The Deceased Or Injured Persons, Then Also In Our Considered Opinion, The Appellant Shakhawat Would Be Held Guilty Of The Offences With Which He Has Been Charged, Because At The Time Of Incident He Was A Member Of Unlawful Assembly Duly Armed With Country-made Pistol And In Prosecution Of The Common Object Of That Assembly, Injuries Were Caused To The Deceased And Injured Persons. As We Have Mentioned Herein- Above Also, Overt Act By Causing Injuries By All The Members Of Unlawful Assembly Is Not The Requirement Of Law To Convict A Person With The Aid Of Section 149 IPC.
29. No Other Argument Worth Mentioning Was Urged Before Us By The Parties Counsel.
30. For The Reasons Mentioned Herein-above, There Is No Scope To Make Any Interference In The Impugned Judgment, As The Learned Trial Court Has Not Committed Any Illegality In Convicting The Appellants-accused.
31. Consequently, The Appeal Being Bereft Of Any Merit Is Hereby Dismissed. The Conviction And Sentence Of The Appellants-accused Khalid, Dilshad S/o Shabbir And Shakhawat Is Affirmed. These Appellants Are On Bail. They Shall Be Taken Into Custody And Sent To Jail By The Chief Judicial Magistrate Meerut To Serve Out The Sentence Awarded By The Trial Court. After Sending These Appellants To Jail, Their Surety Bonds Shall Stand Cancelled And Sureties Would Be Discharged.
32. The Appeal Against The Appellants Munaf And Bhoorey Stands Abated Due To Their Death.
33. The Office Is Directed To Return Lower Court Record Immediately Along-with A Copy Of This Judgment. Compliance Report Will Be Submitted By CJM Concerned Within A Period Of Two Months.

Go to Navigation