Mansoor & Others vs State Of U.P.
2018 Latest Caselaw 1760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
										
 
Court No. - 46
 
Case :- CRIMINAL APPEAL No. - 5093 of 2007
 
Appellant :- Mansoor & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anubhav Trivedi,A.K.Pandey,Dileep Kumar,Kaushalendra Nath Singh,Maqsood Beg,Mohd Imran Khan,Mohd. Monis,Rajrshi Gupta,Satish Trivedi,Vinay Saran
 
Counsel for Respondent :- Govt. Advocate,Jitendra Prasad Mishra,M.D.Mishra
 

 
Hon'ble Naheed Ara Moonis,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Naheed Ara Moonis,J.

The instant appeal has been filed on behalf of the appellants, namely, Mansoor, Kaleem Ahmad and Rafeeq against the judgment and order dated 31.7.2007 passed by the learned Additional District Judge, Court No.1, Allahabad in S.T. No.195 of 1991 (State Vs. Mansoor and others) arising out of case crime nos.355 of 1990 and 356 of 1990 whereby convicting them under Section 302/34 IPC for life imprisonment with fine of Rs. 5000/- each and in default of payment of fine one year rigorous imprisonment and under Section 307/34 IPC ten years rigorous imprisonment with fine of Rs.2000/- and in default of payment of fine six months rigorous imprisonment. Further appellant Kaleem Ahmad was convicted under Sections 26/27 Arms Act for three years rigorous imprisonment with fine of Rs.1000/-.

The instant case is relating to the double murder of Mahboob Ahmad and Mashooq Ahmad who are the father and brother of the complainant and causing injury to one Puddan, who is brother-in-law of Mahboob Ahmad by the accused appellants.

The prosecution case in short conspectus is that an FIR was lodged by Maqbool Ahmad at police station Dhooman Ganj, Allahabad on 9.6.1990 stating therein that at about 9.30 A.M. some heated words were exchanged over taking water between ladies and children from the hand pump installed near his house. His father Mahboob Ahmad had refrained Altaf who is the son of Mansoor and others, to quarrel. Thereafter Altaf went away to his house disclosing about the dispute to his family members. At this Rafeeq having double barrel gun as well as his son Kaleem Ahmad and Mansoor having single barrel guns came exhorting. When they came along with weapons Puddan, Mashooq and the complainant Maqbool Ahmad and various persons of his village gathered. Rafeeq had fired upon his father Mahboob Ahmad and as soon as his brother Mashooq ran towards to lift his father, accused Kaleem Ahmad had fired upon him and at the same time accused Mansoor had also fired with intent to kill whose shot hit on the shoulder of Puddan. The complainant and other persons somehow snatched the gun from the accused Kaleem Ahmad and as the crowd was attracted at the place of occurrence, the accused persons took to their heels towards east. His brother Mashooq Ahmad had died on the spot while his father Mahboob Ahmad and Puddan became badly injured who were sent to the hospital. The single barrel gun having number 3330-75 which was snatched from the accused Kaleem Ahmad was handed over to the station officer by the complainant.

On this information the report was lodged at 10.30 A.M. on 9.6.1990 as Case Crime No.355 of 1990, under Sections 302,307 IPC against Mansoor, Kaleem Ahmad and Rafeeq and Case Crime No.356 of 1990 under Section 25 of the Arms Act against the accused Kaleem Ahmad. The police was swung into action and the investigation was handed over to P.W-5 Yogendra Kumar Rai. He had entrusted Sub-Inspector Harihar Singh to conduct the inquest of the deceased Mashooq Ahmad. He was also directed to collect blood stained and plain earth from the place of incident. The inquest was conducted in his presence by SI Harihar Singh which was proved by him and marked as Ext. Ka-3. After conducting inquest, SI Harihar Singh prepared photonash, letter to R.I., challan lash, letter to C.M.O. and prepared the seal in the presence of P.W-5 Yogendra Kumar Rai which was proved by him as Ext. Ka-4-8.

The dead body of Mashooq Ahmad was sealed and was handed over for postmortem to Constable Ramakant Pandey and Drigpal Singh along with necessary papers. Thereafter he had recorded the statement of the complainant Maqbool Ahmad at the place of incident and at his instance the site plan was prepared which was marked as Ext. Ka-9. At the place of incident three empty cartridges were recovered, of which the memo was prepared by SI Harihar Singh and the same was proved by him as Ext. Ka-10. SI Harihar Singh had collected the blood stained and plain earth which were kept in separate containers. Memo was proved by him as Ext. Ka-11. Thereafter he went to Colvin Hospital where SI Harihar Singh had conducted the inquest of the deceased Mahboob. The inquest report was proved by him and marked as Ext. Ka-12. In his presence SI Harihar Singh had prepared the photo nash, challan lash, letter to R.I., letter to CMO and seal of the deceased Mahboob Ahmad and the same was marked as Ext. Ka-13-17. Thereafter the dead body of Mahboob was sent for postmortem through Constable Ramakant Pandey and Drigpal Singh.

He had recorded the statement of injured Puddan on 10.6.1990 when he reached at village Bakshi Morh. He had tried to search accused persons, but they could not be traced out. On 11.6.1990 he had recorded the statement of accused Kaleem Ahmad while in custody at police station. On 12.6.1990 after arresting accused Mansoor near the crossing of Jhalwa his statement was recorded. He had also recorded the statement of one, Nanhey on 16.6.1990. On 10.7.1990 the statement of accused Rafeeq was recorded while he was in jail. On the same day he had sent the blood stained, plain earth, empty cartridges and pellets which were recovered from the body of the deceased to the Forensic Science Laboratory. On 24.8.1990 he had recorded the statement of Constable Ramakant Pandey and Drigpal Singh.

He had obtained sanction from the District Magistrate Subhash Kumar for prosecuting the appellant Kaleem Ahmad under Section 25 of the Arms Act which was proved by him and marked as Ext. Ka-18.

The autopsy of the deceased Mahboob Ahmad was conducted on 10.6.1990 at 2 P.M. by Dr. S.P. Sharma, P.W-6. He had found rigor mortis passed out from upper limb present in lower limb. Duration of death about one day.

The following anti-mortem injuries were found on the body of the deceased Mahboob Ahmad:

An oval wound 2 ½" x 2" on the right mid axilary line 9" below the Axillary pit margins inverted, omentum coming out with wound. Charring present. Wound of entry of margins blackened.

Internal examination:Heart empty. Lungs congested. Liver badly ruptured. Hemoperitoneum present. Ascending colon ruptured. Stomach callus semi. Small intestine half full. Long intestine half full. Bladder empty. Small size pellets 34 in number. blood stained present. Muscle of back area 6" behind thigh. 24 from muscle. 10 from abdominal cavity. Cause of death shock and haemorrhage due to ante-mortem firearm injuries.

The autopsy of the deceased Mashooq Ahmad was conducted on 10.6.1990 at 2.45 P.M. by Dr. S.P. Sharma, P.W-6. He found rigor mortis passed out from upper limb present in lower limb. Duration of death about one day.

The following anti-mortem injuries were found on the body of the deceased Mashooq Ahmad:

Multiple rounded wounds 2mm in diameter present in an area extending from upper abdomen, front of chest, neck and both shoulders. Margins inverted. No blackening. No charring. No tattooing present. (wound of entry)

Internal examination:

Fracture of 3rd & 4th ribs left side present. Haemorrhage present. Both lungs ruptured. Heart ruptured. Liver ruptured. Hemoperitoneum present. Stomach contains semi food. Small intestine half full. Large intestine half full. 18 blood staineded pellets recovered.

Injury no.1 was caused by fire. The postmortem was prepared and signed by him which was marked as Ext. Ka-29. In his deposition, the injuries which were caused to both the deceased were sufficient for causing death and the incident had occurred around 9.30 A.M. on 9.6.1990

The injured Puddan was examined on 9.6.1990 at 11.15 A.M. by Dr. A.K. Srivastava, P.W-7.

The following injuries were found on the body of Puddan:

1. Lacerated wound of 1cm x ½ cm below in front of right shoulder 11cm below acromion process right;

2. Contusion of 2cm x 1cm just left to injury no.1.

Advice: Injury no.1 is caused by hard and blunt object kept under observation.

Injury no.2 is caused by hard and blunt object. Nature fresh and simple.

Advised X-ray of right shoulder. Single radio opaque (small) metallic shadow seen in the upper arm (L).

The said X-ray report was proved by P.W-7 Dr. A.K. Srivastava marked as Ext. Ka-25.

After collecting clinching and credible material on record, the charge sheet were submitted against the accused appellants, namely, Mansoor, Kaleem Ahmad and Rafeeq under Sections 302,307,34 IPC and against Kaleem Ahmad under Sections 25/27 Arms Act. The charge sheets were proved by P.W-5 SI Yogendra Kumar Rai marked as Ext. Ka-19 & 20. The chik FIR which was prepared by Head Moharrir Vindhyachal Singh was proved by P.W-5 SI Yogendra Kumar Rai marked as Ext. Ka-21 as Vindhyachal Singh who was posted along with him after retirement settled in Bihar. He had also filed the report of the police record room that the G.D. of the case has been weeded out. The carbon copy of the G.D. was filed which was marked as Ext. Ka-22.

The charges were framed against all the appellants under Sections 302/34 & 307/34 IPC on 4.1.1994 and against Kaleem Ahmad further charge was made under Sections 26 & 27 of the Arms Act.

All the appellants had abjured the charges and claimed to be tried.

To prove the prosecution case against the appellants, the complainant Maqbool Ahmad was examined as P.W-1, Puddan, the injured was examined as P.W-2. The formal witnesses, namely, Ramakant Pandey, Constable was examined as P.W-3, Dr. S.C. Srivastava was examined as P.W-4, Yogendra Kumar Rai, S.O. was examined as P.W-5, Dr. S.P. Sharma was examined as P.W-6 and Dr. A.K. Srivastava was examined as P.W-7.

In defence on behalf of the accused appellants Dr. S.C. Srivastava was examined as D.W-1, Dr. B.B. Pandey was examined as D.W-2, Dr. U.C. Dwivedi was examined as D.W-3 and Dr. Swaroop Narayan Tiwari was examined as D.W-4.

Thereafter the statement of the accused appellants were recorded under Section 313 Cr.P.C. It was admitted by them that accused Kaleem Ahmad is the son of accused Rafeeq and Mansoor is the maternal brother of accused Rafeeq. They had also admitted that the deceased Mahboob Ahmad and Mashooq Ahmad are the father and brother of the complainant. They had further admitted that a hand pump was installed 10-15 paces away from the house of the complainant on the western side. From the hand pump the people of his village used to take water. However, they denied the entire incident and stated that they had not made any fire upon any person only they had some quarrel. The false report has been lodged at police station Dhoomanganj at a belated stage. They had showed ignorance as what action taken by the police concerned at the spot. They had also showed ignorance as to who had sustained injury and about the postmortem. They had stated that both the charge sheets have wrongly been submitted against them and the cases have been registered due to enmity hence false evidence has been given by the witnesses. Additional statement u/S 313 Cr.P.C. of all the accused appellants were recorded in which they had stated that both the witnesses, namely, Maqbool Ahmad and Puddan had falsely deposed against them.

Maqbool Ahmad is the complainant of the case was examined as P.W-1 who had deposed in his statement that he knows accused persons, namely, Mansoor, Kaleem Ahmad and Rafeeq. Accused Kaleem Ahmad is the son of accused Rafeeq and accused Mansoor is the cousin of Rafeeq. The deceased Mahboob Ahmad was his father while another deceased Mashooq Ahmad was his younger brother. Both have been murdered five years ago i.e. on 9.6.1990 at 9.30 A.M. His father Mahboob Ahmad and his younger brother Mashooq Ahmad were sitting at the door of his house prior to the incident 10-15 paces away from his house there is a hand pump from which the villagers used to take water. Prior to the incident some female and children were fetching water at that time, accused Mansoor, father of Altaf was also taking water and some quarrel took place between him and the children & ladies. His father Mahboob Ahmad went to pacify the dispute and scolded Altaf who went to his house. After few minutes all the three accused persons, namely, Rafeeq having double barrel gun and Kaleem Ahmad and Mansoor having single barrel gun came at the spot. Where he, his father Mahboob Ahmad, Sagheer and Nanhey were also present. Accused Rafeeq made fire at his father Mahboob Ahmad, he fell down. When his younger brother Mashooq Ahmad ran to save his father, accused Kaleem Ahmad had also fired upon him and his younger brother Mashooq Ahmad also fell on the ground. At the same time, when Puddan came forward the accused Mansoor had fired upon him who sustained injury over his shoulder. He also fell on the ground. Puddan, Nanhey, Saghir and Mashooq Ahmad had snatched the gun of accused Kaleem Ahmad. Thereafter all the three accused persons had escaped towards east. At that time, his father Mahboob Ahmad was alive, but his younger brother Mashooq had succumbed to the injuries. His father Mahboob Ahmad and Puddan were taken to the Colvin Hospital with the assistance of the villagers. His father had breathed his last Thereafter he along with others snatched gun of the accused Kaleem Ahmad had gone to the police station to lodge the FIR. The alleged gun was handed over to the police concerned and the report was lodged which was proved by him and marked as Ext. Ka-1.

Puddan, the injured who was examined as P.W-2 had also made similar statement as stated by the P.W-1 Maqbool Ahmad. He had stated that the deceased Mahboob Ahmad is his brother-in-law. The incident is of about 8 years ago which had occurred on 9.6.1990 at 9.30 A.M. As he was coming from his sister's house after giving milk he saw that Altaf, the son of Mansoor had put his bucket for taking water from the hand pump. At that time Mahboob Ahmad, the deceased was sitting at the door in front of his house and his sons, namely, Mashooq Ahmad and Maqbool Ahmad were also present there. Mahboob Ahmad came from the hand pump after pacifying the dispute of the ladies and children with Altaf over taking water from the hand pump and scolded Altaf. Thereafter Altaf went to his house silently after filling water in his bucket. He (P.W-2) remained there at the house of Mahboob Ahmad. After an hour Rafeeq, Kaleem Ahmad and Mansoor who were having guns were seen 15 paces from the house of Mahboob. They were seen coming towards the house of Mahboob Ahmad and as soon as they reached, Rafeeq had fired upon Mahboob Ahmad, on account of receiving injury of firearm he fell down. When his son Mashooq Ahmad came running towards his father, the accused Kaleem Ahmad had also fired upon him who fell down and at this the witness (P.W-2 Puddan) had refrained them. Then accused Mansoor had fired upon him, on account of which, he had sustained firearm injury. As the accused Kaleem Ahmad wanted to load his gun, at that juncture he, Maqbool Ahmad, Nanhey and Sagheer snatched his gun. Thereafter all the accused persons ran towards east. On account of fire, Mashooq Ahmad had succumbed to the injuries while Mahboob was alive. He along with Mahboob Ahmad went to Colvin Hospital and as they reached near the gate of Colvin Hospital, Mahboob Ahmad succumbed to the injuries. He was examined in Colvin Hospital by the Doctor and he was advised for X-ray which was done on 3rd day of the incident. This witness Puddan was cross examined in 1998 and thereafter he was again cross-examined in 2007.

Constable Ramakant Pandey was examined as P.W-3 who was posted at Dhoomanganj on 9.6.1990. He was entrusted with the dead bodies of Mashooq Ahmad and Mahboob Ahmad in a sealed condition for postmortem. He had gone along with Constable Drigpal Singh. He had identified the dead bodies before the Doctor.

S.C. Srivastava, Radiologist of Colvin Hospital was examined as P.W-4 who had stated that on 12.6.1990 X-ray of left shoulder of Puddan was conducted on the same day in his presence who was referred by Dr. S.K. Srivastava. He had found shadow of a metallic density on the left upper hand. After examining the X-ray plate he had prepared his report which was signed by him and marked as Ext. Ka-2. He has opined that the metallic density substance could be pellet.

Yogendra Kumar Rai who was posted as S.O. at police station Dhoomanganj was examined as P.W-5. He had stated that he was present in a programme relating to crime at 10.30 A.M. at police lines, Allahabad and he had received information through wireless that some incident took place in Bakshi Mohra. Hence he at once reached at the place where Sub-Inspector Harihar Singh and Gajraj Singh were present. He had asked S.I. Harihar Singh to prepare the inquest of Mashooq Ahmad and to collect blood stained and plain earth and to prepare the memo who had conducted the inquest in his presence which was signed by him. The inquest was proved which was marked as Ext. Ka-3. Thereafter S.I. Harihar Singh had also prepared the photo nash, challan lash, letter to R.I., letter to C.M.O. and sample of seal in his presence which was signed by Harihar Singh which was marked as Ext. Ka-4-8. He had further stated that he is not aware about the posting of SI Harihar Singh. After sealing the dead body of Mashooq Ahmad along with relevant papers, it was entrusted to Constable Ramakant Pandey and Drigpal Singh for postmortem. He had also recorded the statement of Maqbool Ahmad, the complainant on the spot and on his disclosure the site plan was prepared by him which was signed and proved by him and was marked as Ext. Ka-9. In his presence three empty cartridges were recovered, of which memo was prepared by S.I. Harihar Singh whose signature was proved by him and marked as Ext. Ka-10. He had also proved the memo prepared by SI Harihar Singh in respect of blood stained and plain earth which were kept in separate containers proved by him and marked as Ext. Ka-11. He had further deposed that he could not say about the blood collected was from whose body.

Further P.W-5 deposed that he had reached at the Colvin Hospital and got the punchayatnama of Mahboob Ahmad through SI Harihar Singh who was sent by him and was marked as Ext. Ka-12. In his presence SI Harihar Singh had prepared the photonash, challan lash, letter to RI, letter to CMO and seal of Mahboob Ahmad which was proved by him as Ext. Ka-13-17. Thereafter the dead body of Mahboob Ahmad was handed over to Constable Ramakant Pandey and Drigpal Singh for postmortem.

Dr. S.P. Sharma, who was posted at Colvin Hospital was examined as P.W-6. He had conducted the autopsy of the deceased Mahboob Ahmad and Mashooq Ahmad on 10.6.1990 at about 2 P.M. and 2.45 P.M. respectively. Both the reports have been proved by him which were marked as Ext. Ka-23 & 24. The detail discussion has already been given in the preceding paragraphs.

Dr. A.K. Srivastava who was posted as Medical Officer at Moti Lal Nehru Hospital was examined as P.W-7. He had examined the injury of P.W-2 Puddan on 9.6.1990 at 11.15 A.M. He had proved the injury report of Puddan which was marked as Ext. Ka-25. It has already been discussed in the preceding paragraph hence need no repetition for the sake of brevity.

In defence Dr. S.C. Srivastava was produced as D.W-1 who had stated that on 9.6.1990 he was posted at Colvin Hospital. He had examined the injury of Smt. Lalli, the wife of accused Rafeeq at about 5 P.M. The following injuries were found on her person:

1. Lacerated wound 5cm x 0.5cm x scalp deep over the right side of the scalp 7cm above the eye brow placed longitudally bleeding present;

2. Contused swelling 12cm x 5cm on the right forearm 4cm above the wrist joint red in colour kept under observation;

3. Contused swelling 11cm x 6cm on the left forearm 2cm above the wrist joint, tenderness present kept under observation;

4. Lacerated wound 1.5cm x 0.5cm x muscle deep on the left forearm ventral aspect 5cm away from the wrist joint;

5. Contusion 7cm x 1.5cm on the left leg 10cm above the ankle joint red in colour.

The Doctor has opined that the injury nos.2 & 3 was kept under observation and advised for X-ray, which were caused by blunt and hard object. The injuries were 1/6 day old. The injury report was prepared by him at the time of examination, which was marked as Ext Kha-1.

D.W-1 had further stated that he had also examined the injuries of Smt. Aliya, wife of Mansoor on the same day. He had found following injuries on her person:

1. Firearm wound of entry 1/10cm x 1/10cm x depth on the left side of nostril just below the nasal bridge. No B.T. seen. Margins of the wound show ecchymosis. Margins inverted;

2. Firearm wound 1cm x 3/10cm x depth over the right side lower part of the lip in right half present. No B.T. seen. Kept under observation;

3. Contusion 10cm x 6cm on the right side face 2cm below the lower eye lid margins. Kept under observation;

4. Firearm wound of entry 1/10cm x 1/10cm x depth under observation as the middle part of the front of neck 7.5cm above the superslemal fossa. No B.T. seen kept under observation.

He has opined that injury no.3 was caused by blunt object while remaining injuries were caused by firearms which were fresh at the time of examination about 1/6 day old. Injury report was prepared by him at the time of examination which was marked as Ext. Kha-2.

The X-ray of face and neck of Smt. Aliya was conducted on 11.6.1990 by Dr. B.B. Pandey, Senior Radiologist, Moti Lal Nehru Hospital, Allahabad who was produced as D.W-2. He had found two small rounded radio opaque shadow of metallic density seen. One in face region and another in neck region. He had prepared the report after seeing X-ray plate. X-ray report of Aliya proved by him as Ext. Kha-3.

The X-ray of Smt. Lalli, the wife of accused Rafeeq was conducted on 11.6.1990 by the Dr. B.B. Pandey, D.W-2 who had found fracture shaft of the left radius bone seen in lower half.

Dr. U.C. Dwivedi who was posted as Emergency Medical Officer at Tej Bahadur Sapru Hospital, Allahabad was produced as D.W-3. He had examined the injury of accused Rafeeq on 10.6.1990 at 7.30 P.M. The following injuries were found on his person:

1. Incised wound measuring 3cm x ½ cm x scalp deep on the left side of skull 3cm outer to mid line and 10cm above left ear yellowish ointment applied. On clear margins broken;

2. Abraded contusion 4cm x 3.5cm over top of left shoulder right present;

3. Abrasion with contusion measuring 10cm x 2cm on front of right side chest crest obliquely 2cm below clavicle;

4. Contusion 10cm x 2cm horizontal over upper and mid of back of chest redish in colour;

5. Abrasion 3.5cm x ½ cm over outer and back of right side of lower part and chest 3cm below right scapula soft crest present;

6. Abraded contusion 4cm x 2cm on outer part of right upper arm 12cm below shoulder joint.

Opinion- Injury no.1 caused by sharp edged weapon. Other are caused by blunt and hard object. Injuries are simple in nature. Duration about one day old.

D.W-3 Dr. U.C. Srivastava had deposed that the injury no.1 was caused by sharp edged weapon while other injuries were caused by hard and blunt object. All the injuries were simple in nature and one day old. Injuries were proved by him and marked as Ext. Kha-3. He had stated that abrasion and contusion could have been manufactured. He had not considered fit to refer him for examination of injury no.1. He had denied that a fake injury report was prepared by him.

Dr. Swaroop Narayan Tiwari was examined as D.W-4, Retired Director of Forensic Science Laboratory, Chemical Examiner and Serologist who had made description with regard to the injuries of the deceased as mentioned in the post mortem report.

After appraisal of the evidence on record, the learned trial court found that the prosecution has proved its case against all the appellants beyond all reasonable doubt who were involved in the incident in a planned manner, on account of which, two persons, namely, Mahboob Ahmad and Mashooq Ahmad were murdered and Puddan had sustained injury. Hence all the accused appellants were convicted under Sections 302/34 and 307/34 IPC. Accused Kaleem Ahmad was also found guilty for commission of offence under Sections 26/27 Arms Act, hence he was also separately convicted as stated in the opening paragraph of the judgment. Hence this appeal.

So far as the accused Kaleem Ahmad is concerned at a belated stage an application on his behalf raising plea of juvenility was moved contending that accused appellant Kaleem Ahmad was juvenile at the time of incident as his date of birth was 15.12.1973 and the date of incident was of 9.6.1990.

Neither the said plea was raised at the time of filing of appeal nor at any time of moving bail application. When the application claiming juvenility was moved an enquiry was conducted as required under the Juvenile Justice Act. Juvenile Justice Board had found that the accused Kaleem Ahmad was minor at the time of incident and the said report was never challenged either on behalf of the complainant nor on behalf of the State. Hence the same attached finality. On the basis of the said report, the application moved on behalf of the appellant Kaleem Ahmad was allowed by giving him benefit of juvenile in conflict with law and held that he has wrongly been convicted and sentenced. As he remained in judicial custody more than 9 years his conviction and sentence was set aside and it was directed that the appellant be released from custody forthwith if not required to be detained in any other case by co-ordinate Division Bench of this Court vide order dated 19.7.2016.

Heard Shri Mohd. Imran Khan, learned counsel appearing on behalf of appellant Mansoor, Shri Dilip Kumar assisted by Shri Rajrshi Gupta, learned counsel appearing on behalf of the appellant Rafeeq as well as Shri Roopak Choubey, learned A.G.A for the State and Shri Jitendra Singh, learned counsel for the complainant who have also taken through the lower court record.

The submission of the learned counsel appearing on behalf of the appellant Mansoor is that according to the prosecution case, the father and brother of the complainant, namely, Mahboob Ahmad and Mashooq Ahmad, have been murdered while one Puddan had received injury on his shoulder. The role of firing upon Mahboob Ahmad with his double barrel gun was assigned to Rafeeq, the role of firing upon Mashooq Ahmad was assigned to accused Kaleem Ahmad by his single barrel gun while the role of firing upon Puddan was assigned to the appellant Mansoor by his single barrel gun. Thus the appellant Mansoor has been shown the role of causing injury to Puddan, the P.W-2. The Doctor who had examined Puddan has stated that the injury was caused by some hard and blunt object and the nature of injury was fresh and simple. According to the prosecution case, also the accused appellant Mansoor has been assigned the role of firing at Puddan which hit on his shoulder.

It is further submitted that looking to the role assigned to the appellant Mansoor and the injury sustained by the injured Puddan, the case against the appellant Mansoor will not travel beyond the scope of Section 323,324 IPC. It is also submitted that even if the prosecution story is taken to be true the main accused of the case who were assigned the role of firing on the deceased, namely, Mahboob Ahmad and Mashooq Ahmad were accused Rafeeq and Kaleem Ahmad. Accused Rafeeq was granted bail on 24.9.2012 whereas accused Kaleem Ahmad who was declared juvenile by the Juvenile Justice Board was released from custody by order dated 19.7.2016.

It is further submitted that no case of sharing common intention with aforesaid two accused persons is made out which requires prearrange and prior consult, hence the conviction of Mansoor for life imprisonment with the aid of Section 34 IPC is unsustainable. The appellant Mansoor is wholly innocent who was on bail during trial is languishing in jail since more than 10 years after his conviction, hence he is entitled to be acquitted.

Learned counsel Shri Dilip Kumar appearing on behalf of the appellant Rafeeq has submitted that the manner as alleged in the FIR regarding the entire incident as put forth by the complainant had never occurred. The FIR is anti-timed as the first informant while lodging the First Information Report had stated that his brother Mashooq Ahmad had succumbed to the injuries on the spot and his father Mahboob Ahmad and Puddan, the brother-in-law of Mahboob Ahmad were seriously injured who have been taken to the hospital. This clearly shows that only Mashooq Ahmad had expired at the time of lodging of the FIR while Mahboob Ahmad was alive. Whereas in the GD entry it is mentioned that two persons were killed and one person is alive. It shows that the report was lodged after due deliberation. The GD entry is of dated 9.6.1990 at about 10.30 A.M. in which death of two persons is mentioned, as such this is a major discrepancy to show that the FIR is anti-timed.

It is further submitted that on a trivial issue of taking water from the hand pump, the incident is said to have occurred in which the appellant Rafeeq had fired at Mahboob Ahmad, the father of the complainant, on account of which, he sustained serious injuries and thereafter he died. When Mashooq Ahmad went to save his father, accused Kaleem Ahmad had fired upon him, on account of which, he also died on the spot.

It is also alleged that accused Mansoor had fired upon Puddan who had also suffered injury on the spot. During this period, the gun of accused Kaleem Ahmad was snatched by various persons who were present there.

The finding recorded by the learned trial court is entirely based upon surmises, assumption and presumption.

It is further submitted that the inquest report, challan lash and other relevant papers were not sent along with dead bodies for postmortem. It clearly indicates that the FIR was not in existence which is evident from the fact that P.W-3 Ramakant Pandey who had brought the two dead bodies for postmortem had not handed over the papers on the same day at the same and was handed over by him on 10.6.1990.

In this incident, the wife and aunt of Rafeeq, namely, Smt. Lalli and Smt. Aliya including Rafeeq had also suffered injuries, but there is no explanation about their injuries by the prosecution. The prosecution has suppressed the injuries of the appellants which creates doubt about the genesis of occurrence and manner of incident. Non-explanation of the injuries suffered by the appellant's side, probable circumstance flows that the prosecution is hiding the manner of incident. Neither the injury of Rafeeq nor of the two ladies have been explained. Their medical report probablies that they had received injuries in the same incident.

Accused Rafeeq was examined at 7.30 P.M. on the next date of the incident i.e. 10.6.1990. He had sustained one incised wound on the skull while others were abraded contusions. He suffered as many as six injuries. Similarly, Smt. Aliya who is the wife of Mansoor had sustained firearm injuries as well as contusion on her person. Smt. Lalli w/o Rafeeq had also received injuries whose left forearm was fractured. Their injuries were proved by the doctors D.W-1, D.W-2 and D.W-3.

As such the trial court has committed manifest error in disbelieving the medical report filed by the defence and the plea of the appellants that in self defence they had fired upon the complainant-party.

To prop his submissions learned counsel for the appellants have placed reliance on the following cases:

Lakshmi Singh And Ors. vs State Of Bihar  1976 AIR SC 2263;

Periasami vs. State of Tamil Nadu (1996) 6 S.C.C. 457;

Pradeep Vs. State of U.P. 1996 AIR SC 966;

Babu Ram & Others v/s State of Punjab 2008 AIR SC 1260.

In the aforesaid cases, the Hon'ble the Apex Court has dealt with that initial burden of proof is upon the prosecution. When there is failure to explain the injuries suffered by the accused, the adverse inference has to be drawn by the court.

In the present case not only the accused appellant Rafeeq, but two ladies of his family have also sustained injuries during the course of incident which has been suppressed by the prosecution when the medical report was proved by the Doctors. The injuries of all the injured persons were examined by Dr. S.C. Srivastava, Dr. B.B. Pandey and Dr. U.C. Dwivedi who have been produced in defence as D.W-1, D.W-2 & D.W-3, yet the learned trial court has disbelieved about the injuries of the accused's side in the said incident on the ground that neither any FIR was lodged on behalf of the accused persons nor any application u/s Section 156(3) Cr.P.C. or any complaint was filed against the complainant-party.

In the aforesaid decisions it has been held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

In the aforesaid decisions the Hon'ble Apex Court has also extended benefit of doubt regarding as to who was the aggressor and has acquitted the accused persons.

Lastly, continuing in the same thread, learned counsel appearing for the appellant Rafeeq has pressed alternate argument that if the prosecution case has any truth it is a case of sudden quarrel and the deceased died on account of single shot. There was no repeated fire upon the deceased Mahboob Ahmad by the appellant Rafeeq. Hence the case against the appellant would not travel beyond the scope of Section 304 IPC. In view of the advanced age of the appellant Rafeeq who is aged about 84 years, he deserves leniency and be acquitted of the charge as he was languishing in jail since the date of conviction i.e. 31.7.2007 till he was granted bail on 24.9.2017.

Per contra, the learned counsel for the complainant and the learned A.G.A have vehemently refuted the submissions advanced by the learned counsel for the both the appellants, namely, Mansoor and Rafeeq and have contended that it was a broad day light incident which had occurred at about 9.30 A.M. on 9.6.1990, of which prompt FIR was lodged at 10.30 A.M. by Maqbool Ahmad, who is the son of the deceased Mahboob Ahmad and brother of deceased Mashooq Ahmad. In the said incident one Puddan who is the brother-in-law of the deceased Mahboob Ahmad had also suffered injuries. All the accused persons on a trivial issue of taking water from the hand pump which was situated near the house of the complainant, came along with single and double barrel guns and fired upon Mahboob Ahmad and Mashooq Ahmad. Mashooq Ahmad died on the spot while Mahboob Ahmad and one Puddan were taken to the hospital to provide them medical treatment, but the injured Mahboob Ahmad also succumbed to the injuries at the gate of the Colvin Hospital. The defence cannot derive any benefit when in the FIR it has been mentioned that Mashooq Ahmad had died on the spot and the injured Mahboob Ahmad was taken to the hospital along with the injured (Puddan) and in the GD entry it has been mentioned that two persons were killed. From the bare reading of the statement of P.W-1 Maqbool Ahmad it is quite possible that when he had written the report in his house and at that time his father who had suffered injuries was taken to the hospital where he succumbed to the injuries and as such it was written in the FIR that one person had died and his father was taken to the hospital but he could not survive and died at the gate of Colvin Hospital. Hence it would have been communicated to the concerned police station about the death of two persons.

In this view of the matter, it cannot be said that the FIR has been lodged anti-timed.

It has also been mentioned by the injured Puddan who was examined as P.W-2 about the manner of incident. Yogendra Kumar Rai who was the investigating officer was examined as P.W-5. He had stated that he was present at police line and received message about the incident through wireless to reach immediately at the police station. When he arrived there police personnel was already present there. The FIR was registered by Head Moharrir Vindhyachal Singh who had prepared the chik FIR. Therefore, there is no delay in lodging of the FIR. The chik FIR has been proved by the IO Yogendra Kumar Rai as SI Vindhyachal who had prepared the chik FIR had retired and had gone to state of Bihar, so he could not be produced for proving the FIR. Hence it cannot be said that the FIR was lodged anti-timed after deliberation.

It is further contended that it is wrong to say that police papers which were sent along with two dead bodies have been prepared but the FIR was not in existence as the police had not handed over the papers to the Doctor. It is clearly explained by P.W-3 Constable Ramakant Pandey that he along with Constable Drigpal Singh had taken two sealed dead bodies to the mortuary which were identified by them. As they reached between 7-7.30 P.M. they did not submit the papers which were remained with them. This fact has also been stated by the Dr. S.P. Sharma (P.W-6) who had conducted the postmortem of the dead bodies on 10.6.1990 that the dead bodies were received in the evening of 7.40 P.M. on 9.6.1990 and they had received the papers on 10.6.1990 at 2 P.M. When the dead bodies were brought to the mortuary only IVth Class employees were there as such there was no occasion to hand over the papers to them hence, the papers were not submitted which were made available to the Doctor on the date of conducting postmortem of the deceased, as such it cannot be said that the papers relating to the inquest and other police papers were not in existence when the postmortem of the two dead bodies were conducted.

So far as injuries of Smt. Aliya and Smt. Lalli are concerned neither they were at all present nor they had received any injury at the time of incident. Both the prosecution witnesses have consistently stated about that on account of the dispute of taking water from the hand pump Altaf, the son of Mansoor was creating hindrance. Hence the father of the complainant intervened and had scolded him. Thereafter Altaf left the place and went to his house and later on his father Mansoor, Kaleem Ahmad and Rafeeq arrived at the place of incident who were having double and single barrel guns and started firing. Rafeeq had fired upon Mahboob Ahmad who fell down on account of serious injury and succumbed to the injuries. Mashooq Ahmad when ran towards his father to save him he had also sustained injury fired by accused Kaleem Ahmad. Mashooq Ahmad died on the spot. However, accused Mansoor, the father of Altaf had fired upon Puddan who had also sustained firearm injury. The eyewitnesses who were present at the spot had snatched the gun of Kaleem Ahmad which was later on deposited in the police station while lodging of the FIR by the complainant. There is no whisper at all in the statement of the two witnesses that any lady had suffered any injury or Rafeeq was beaten up by the complainant-party.

No plea was ever raised while recording the statement u/s 313 Cr.P.C. of the appellants that accused Rafeeq or his wife have suffered any injury in the said incident. Hence it is entirely wrong to say that the complainant-party was the aggressor who had attacked upon the accused persons causing injuries to accused Rafeeq and two ladies, namely, Smt. Aliya and Smt. Lalli and in right of private defence the appellants had fired resulting into death of two persons and causing injuries to one Puddan who was examined as P.W-2.

The medical reports of the injured Smt. Lalli and Smt. Aliya go to show that they (brought by self) were examined on 9.6.1990 at 5 P.M. and 5.30 P.M. respectively. The Doctor has opined that the injuries of the injured are 1/6th day old i.e. 6 hours ago, thus it cannot be said that they had sustained injuries during the course of incident which had occurred at 9.30 A.M. on 9.6.1990. Similarly the injuries of accused Rafeeq were examined on 10.6.1990 at about 7.30 P.M. and the duration of his injuries has been shown as one day old which can only be received on previous day at 7.30 P.M. on 10.6.1990. If the complainant-party was aggressor and had caused injuries to the family member of the accused-party, then no complaint whatsoever was made to the higher authorities and no weapon was assigned with which they received injuries as such the appellants cannot take the plea of self defence and, if the accused-party have not sustained any injury during course of incident, the prosecution is not under any obligation to explain the injuries sustained by them. Neither the plea of self defence was raised before the trial court nor taken any ground while filing appeal before this Court, hence burden is on the accused-appellants to show that the injuries were caused to them in the same incident at the same time.

It is further contended that there is no discrimination in the testimony of the prosecution with the postmortem of the deceased and the injury report of injured Puddan. The statement of the injured witness Puddan who was examined as P.W-2 lends support to the prosecution case and his testimony cannot be discarded merely on the ground of some variation or inconsistency. Inconsistencies in the statement of the two witnesses are bound to occur, but it will not go to the root of the case that the entire prosecution case should be disbelieved.

An attempt has also been made on behalf of the appellants that the FIR was not sent promptly to the concerned Magistrate hence, it also creates doubt about the time of incident. There is no evidence that the FIR and the chik FIR were sent deliberately after delay to cook up the false case and fake papers regarding the incident. Even if the report has been sent to the concerned Magistrate on the next date of the incident, no prejudice is caused when the name of the accused persons, weapons of assault and the manner of incident were specifically mentioned in the FIR. Merely because SI Vindhyachal Singh who had prepared the GD entry of the FIR was not examined that will not effect the oral testimony of the two eyewitnesses including the one who is an injured witness. The plea of self defence cannot be pressed into by the appellants as the injuries were not at all received by the accused-party in the same incident.

Learned A.G.A. has relied upon the decisions of Hon'ble the Apex Court reported in 2004(1) ACC 223 Shriram Vs. State of Madhya Pradesh wherein it has been held that in case the accused person has also sustained injuries then burden is upon the defence to establish that injuries found were suffered in same occurrence. The prosecution is not required to explain injuries suffered by accused person where such injuries are minor or superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries.

Similar view has also been held by Hon'ble the Apex Court in the case of Nasir Sikandar Sheikh Vs. State of Maharashtra reported in 2005 (52) ACC 509. In the said case also the plea of self defence was raised on behalf of the accused appellant wherein Hon'ble the Apex Court has observed that it is true that the burden is heavy on the prosecution to prove every ingredients of the offence while the defence only probablies the defence taken. There must be material on record to support the defence plea to establish its case. The plea which was raised that the appellant had also received injuries in the course of the said occurrence which remained unexplained by the prosecution was completely lacking and the plea of self defence held to be totally unfounded and his conviction was affirmed.

In the present case the accused persons had filed their medical report for the first time during trial. The injured persons who were medically examined by Dr. S.C. Srivastava, Dr. B.B. Pandey and Dr. U.C. Dwivedi have mentioned about the injuries were fresh. Such opinion of the Doctors could only be given when the injuries had suffered within six hours of examination. The Doctors have further stated about that the injury reports have been placed for the first time at the time of their deposition. Two injured ladies were not present even at the time when the D.W-1 and D.W-2 had been examined who could be identified by the doctors to prove their medical reports prepared by them. Thus the injuries suffered by the two ladies, namely, Smt. Aliya and Smt. Lalli and accused-appellant Rafeeq cannot be said to have suffered during the course of incident which had taken place at 9.30 A.M. on 9.6.1990. As such non-explanation of injuries by the prosecution will not be fatal to effect the prosecution case.

Moreover, in the present case the injured testimony of PW2 Puddan cannot be disbelieved. He has narrated the entire incident in a very natural and in articulate manner which cannot be doubted. P.W-1 who is the complainant and eyewitness of the incident has also completely denied the presence of Smt. Aliya and Smt. Lalli and has also stated that he has not seen any of them on the spot. He had also stated that accused Rafeeq had also not suffered any injury in the said incident.

Both the witnesses have categorically denied about the injuries sustained by accused Rafeeq during the course of incident. It is also very pertinent that in case accused party had suffered any injury in the same incident an FIR could have been registered. Even there is no mention as to by which weapon accused Rafeeq and the two ladies were assaulted hence improbablies the plea of self defence that to protect their person and property they (appellants) had fired upon the complainant's father and brother.

It is further contented that the learned trial court analysed the entire evidence on record and has rightly arrived to the conclusion that the accused persons, namely, Rafeeq and Kaleem Ahmad were involved in the commission of murder of Mahboob Ahmad and Mashooq Ahmad and accused Mansoor had also fired at the injured Puddan (P.W-2). All the accused appellants convicted by the trial court and hence conviction is liable to be maintained.

We have considered the rival submissions advanced by both the learned counsel for the appellants and the learned A.G.A. as well as the learned counsel for the complainant.

So far as the participation of accused Mansoor in the present offence is concerned, his son Altaf was creating hindrance to the ladies and children of the village in taking water from the hand pump. The father of the complainant Mahboob Ahmad (the deceased) had rebuked and scolded him. Thereafter Altaf went to his house. After sometime his father accused Mansoor, Rafeeq and Kaleem Ahmad arrived in front of the house of the complainant with their licensed guns. As soon they arrived at the spot, accused Rafeeq had fired upon Mahboob Ahmad who sustained firearm injury and fell down. To save his father the younger brother of the complainant Mashooq Ahmad ran towards him, he was fired upon by the accused Kaleem Ahmad who is the son of the accused Rafeeq. Mashooq Ahmad died instantaneously on the spot. Puddan who is the brother-in-law of Mahboob Ahmad had also arrived there who was fired upon by the accused Mansoor which hit on his shoulder. In the meantime, the persons who were gathered at the place of incident had snatched the gun of accused Kaleem Ahmad. The entire incident had taken place at 9.30 A.M. in the broad day light on 9.6.1990. The complainant promptly lodged the FIR and in the said FIR it was mentioned by him that Mashooq Ahmad breathed his last on the spot while his father Mahboob Ahmad and Puddan became badly injured. It is also mentioned that two injured persons had been taken to the hospital. In the GD entry of the FIR, it was mentioned that two persons have been killed and one person injured. In the GD entry the name of the injured and the deceased persons have also been mentioned which improbablies the prosecution case that the FIR is anti-timed. It cannot be said that any prejudice has been caused to the accused appellants, if the FIR shows that one person died and the GD entry shows that two persons died.

In this regard, the statement of P.W-1 Maqbool Ahmad which was marked as Ext. Ka-1 is reproduced hereinbelow:"

"eSus ?kVuk ds 5&10 feuV ckn ikSus nl vkSj nl cts ds chp fy[kk FkkA esjs firk vkSj cqn~nu esjs ckn es ?kVukLFky ls pys FksA blfy;s eS ;g ugh crk ldrk fd os yksx ?kVukLFky ls fdrus cts vkSj fdl lk/ku ls pysA eS vius firk vkSj cqn~nu dks ?kVuk LFky ij NksM+dj gh Fkkus pyk x;k FkkA Fkkus ls eS vLirky x;k vkSj ogkW ls eS vius ?kj x;kA yk'k fdldh lqiqnZxh esa Fkh eq>s ;kn ughS A eS tc x;k rks yk'k bDds ij gh FkhA eSus viuh fjiksVZ esa o esjs firk o iqnnu tks cqjh rjg ?kk;y gS dks ysdj yksx vLirky yk;s gSA fy[kk gS;g ckr lgh gSA yksx esjs firk dks vLirky ys tkus ds fy;s rS;kjh dj jgs FksA"

The said statement shows that when the complainant went to lodge the FIR from his house, his father Mahboob Ahmad was alive and he breathed his last at the time he was taken to the hospital by the villagers. This information could have been received at the concerned police station through someone, hence it was written in the GD that two persons have expired. It cannot be proved from any corner that the FIR was anti-timed or it was lodged after inordinate delay with due deliberation and confabulation."

The statement of the injured witness P.W-2 Puddan who has narrated vivid description of the entire incident as such his presence cannot be looked upon with suspicious eyes so much so he has specifically stated about that he was fired by the accused Mansoor. He had totally denied the suggestion that his injuries were manufactured or the X-ray report has also been got prepared some relevant part of his statement is reproduced hereinunder:

"egcwc vgen ds njokts ns[kk ¼dk0QVk½ 10&15 dne dh nwjh ij ,d ljdkjh gS.M iEi gSA xkao ds lHkh yksx ml ij ikuh Hkjrs gSA tc eS nw/k nsdj vius cgu ds ?kj ls okil tk jgk Fkk] rks eSus ns[kk fd gS.M iEi ij vkSjrs ikuh Hkj jgh FkhA eqyfte ealwj dk yM+dk vyrkQ ogkW vk;k vkSj viuh ikuh ckYVh] nwljs yksxksa dh ckfYV;kW Qsd dj gS.M iEi eas yxk fn;kA ml le; egcwc njokts ij cSBs gq;s FksA ogh ek'kwd vkSj edcwy muds yM+ds Hkh FksA egcwc gS.M iEi ij x;s vkSj vyrkQ dks le>k;k vkSj MkWVk QVdkjkA vyrkQ mlds ckn vyrkQ ckYVh Hkjdj pqipki vius ?kj pyk x;kA eS egcwc ds ?kj :d x;kA bl ?kVuk ds yxHkx vk/kk ?k.Vk ckn eqyfte jQhd] dyhe] ealwj rhuksa cUnwds fy;s] egcwc ds ?kj ls yxHkx 15 dne nf{k.k lM+d ds ikl vkrs gq;s fn[kk;h iM+sA egcwc vius njokts ls lkeus yxHkx 10&15 dne dh nwjh ij lM+d dh lhfyax ij FksA vkrs gh eqyfte jQhd us] egcwc ij vius cUnwd ls xksyh pyk fn;kA egcwc xksyh dh pksV [kkdj ogh fxj x;sA mlds ckn egcwc dk yM+dk ek'kwd tks xkao ds iwjc ds rjQ ls Hkkx dj vk jgk Fkk] og Hkh tc cUus ds HkqlkSy ds ikl Fkk] eqyfte dyhe us xksyh ekjhA ek'kwd ogh xksyh dh pksV [kkdj fxj x;kA bl ij tc eSus euk fd;k rks eqyfte ealwj us viuh cUnwd ls esjs Åij Qk;j dj fn;kA eq>s Qk;j ls pksV yxh FkhA mlds ckn eqyfte dyhe us viuh cUnwd fQj ls yksM djus ds fy;s rksM+k Fkk] mlh le; edcwy] uUgsa vkSj lxhj rFkk eSus dyhe dh cUnwd Nhu fy;kA blds ckn eqyfteku iwjc rjQ Hkkx x;sA ¼dk0QVk½ x;h cUnwd eSus edcwy vgen dks ns fn;k FkkA mlds ckn eSus egcwc vkSj ek'kwd nksuks dks tkdj ns[kk rks irk pyk fd ek'kwd ogha ej x;k FkkA egcwc ml le; thfor FksA egcwc dks ysdj ge yksx ,Ddk ls dkfYou vLirky bykgkckn ys vk;sA dkfYou vLirky ds xsV ds ikl egcwc dh e`R;q gks x;hA dkfYou vLirky esa esjk MkDVjh eqvkbuk gqvkA ckn esa esjh pksVks dk ,Dl&js Hkh gqvk FkkA fnukad 12 dks fQj dgk fd rhljs fnu ,Dl&js gqvk FkkA eS i<+k fy[kk ugh gWwA xokg lxhj dh e`R;q gks x;h gSA"

In this view of the matter, the testimony of the P.W-2 injured witness has to be rated high who shall not screen the real offender and at the same time would not substitute any innocent person. Nor his statement can be discarded on the ground that he is interested or partisan witness being the brother-in-law of the deceased. Minor discrepancy or variation, if any, in the statement would not create doubt regarding its truthfulness. The testimony is only subject to close scrutiny. This will raise a legitimate query why the witnesses conspire to involve them falsely who had no rancor or ill-will against the appellants.

It is also argued by the learned counsel for the appellants that the FIR of the incident was not dispatched within 24 hours which is the requirement of Section 157 of the Code of Criminal Procedure.

It is true that Section 157 of the Code of Criminal Procedure makes it obligatory on the officer-in-charge of the police station to send a report of the information to a Magistrate concerned forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice. If the court is otherwise convinced and has come to a conclusion as regards to the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. It can be said that if the special report is not dispatched forthwith, it was only a fault of the investigation and hence on that ground eyewitness account which was otherwise reliable cannot be disbelieved.

Learned counsel for both the appellants have placed various inconsistencies with regard to the inquest of the deceased and the testimony of the prosecution witnesses. In our opinion, the discrepancies which do not shake the basic version of the case may be discarded.

The inquest report of Mashooq Ahmad was prepared at the place of occurrence while the inquest of Mahboob Ahmad was conducted in the mortuary which is evident from the deposition of investigating officer Yogendra Kumar Rai. After inquest both the dead bodies were sealed by him and were sent through Constable Ramakant Pandey and Drigpal Singh for postmortem on the same day. The postmortem was conducted by Dr. S.P. Sharma (P.W-6). The postmortem also confirms the cause of death by receiving firearm injuries.

We are of the view that there is no contradiction or conflict between the oral testimony with the medical evidence. The unimpeachable testimony of eyewitnesses cannot override the opinion of Doctor. The two deceased had suffered firearm injuries which are consistent with the testimony of the eyewitness that all the assailants were armed with firearm weapons and as soon as they reached they started firing which resulted into death of one person on the spot while another person breathed his last at the gate of the hospital. From the place of occurrence the blood was collected by the investigating officer which also lends support about the place of occurrence.

At the time of lodging of the FIR, the name of the accused persons and their role have been specifically mentioned and as such any irregularity during investigation cannot be treated as a ground to overshadow the prosecution case. Participation of the accused-appellants is proved beyond all reasonable doubt by overwhelming evidence on record. The appellants had committed relentless and grim crime of decimating two innocent lives.

So far as the plea of self defence raised by the learned counsel appearing on behalf of Rafeeq is concerned, it is pertinent to note that the learned counsel who has argued on behalf of the appellant Mansoor has not taken any such plea of self defence, rather he had only stated about that appellant Mansoor who is said to have fired at the injured Puddan and the injury of Puddan would not travel beyond the scope of Sections 323/324 IPC.

On the other hand, the learned counsel for the appellant Rafeeq has argued that the appellant Rafeeq, his wife Aliya and aunt Smt. Lalli had also received injuries in the course of said incident which remained unexplained by the prosecution has created dent with regard to the manner of incident.

Firstly, this Court has noted that no such plea was ever raised while recording the statement u/S 313 Cr.P.C. of the accused appellant Rafeeq or other accused persons. Secondly, duration of the injuries of Smt. Aliya and Smt. Lalli shows to have been caused within 1/6 hours and of the appellant Rafeeq one day old. Accused Rafeeq was examined at 7.30 P.M. on 10.6.1990 i.e. on the next date of the incident while Smt. Aliya and Smt. Lalli (brought by self) were examined at 5 P.M. and 5.30 P.M. on 9.6.1990 respectively. Their injuries were found fresh, as such it cannot be said that they had received injuries during the course of the incident which had occurred at 9.30 A.M. on 9.6.1990. The plea of self defence cannot be sustained as neither any FIR was registered in this regard nor any application u/S 156(3) Cr.P.C. or any complaint was filed against the complainant-party. The burden is on Rafeeq, the accused-appellant, to show that he had a right of private defence which extended to causing of death of Mahboob Ahmad.

This Court is of the view that non-mentioning of the injuries of the accused persons will not effect the prosecution case. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons which have been explained in the instant case by the testimony of the two eyewitnesses that neither they had seen the two ladies at the time of incident nor they had seen any injury on the person of the accused appellant Rafeeq. It is also not invariably a rule that the prosecution has to explain injuries sustained by the accused in the same occurrence. The question of obligation to explain the injury sustained by the accused would not arise in the present case when the prosecution has proved its case by cogent and convincing evidence hence the prosecution is not under obligation to explain how and under what circumstances, the injuries have been found on the person of the accused. Therefore, there is no substance in the plea relating to non-explanation of the injuries of the accused appellant Rafeeq or his wife or aunt.

By any stretch of imagination the complainant-party also can not said to be an aggressor as it is not the case of the defence that the complainant-party was armed with lethal weapons and firstly they had caused injuries to them and in self defence they had fired upon the victims. The plea taken by the accused persons improbablies that the injuries sustained by them were in the same incident. Such plea of right of private defence is based upon surmises and speculation and hence the learned trial court has rightly arrived at the conclusion disbelieving the plea of self defence. For the aforesaid reasons, we discard the plea of self defence advanced by the learned counsel for the accused appellants. The learned trial court has recorded the finding that the FIR was lodged without any delay and as such it cannot be said that it was lodged after due deliberation and confabulation.

There is nothing on record to show if the prosecution witnesses had any animus against the accused-appellants. The testimony of the witnesses are cogent, trustworthy and credible and have a ring of truth deserves acceptance. In the case of Mritunjoy Biswas vs. Pranab @ Kuti Biswas; 2013 CriLJ 4212 : the Hon'ble Apex Court has held as under:

"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission."

In view of the above prolix discussions, the offence was not relatable to Section 302 IPC but was one under Section 304 Part-I IPC. What should be the quantum of punishment so far as Mansoor and Rafeeq are concerned, in this regard the punishment of sentence proposed to be has been discussed in extenso by the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Ghanshyam Singh reported in 2003(47) ACC 974 which has been followed in catena of decisions thereafter and the same is reproduced hereinunder:

"The crucial question which needs to be decided is the proper sentence and merely because of lapse of time, the accused is to be waived from undergoing it. It is to be noted that the sentences prescribed for offences relatable to Section 304 Part-I are imprisonment for life or up to a period of 10 years. It is true that no minimum sentence has been prescribed. The sentences can be compared with prescription of similar sentences and other provisions like Section 326 IPC and Section 307 IPC when hurt is caused. Section 304 Part-I is a species of homicidal death. It is statutorily described as culpable homicide though not amounting to murder as defined under the IPC. Taking note of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence.

The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the areas of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P., [1987] 2 SCR 710, this Court while refusing to reduce the death sentence observed thus :

"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justice system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."

Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal Etc. v. State of Tamil Nadu, AIR (1991) SC 1463.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of Callifornia : 402 US 183 : 28 L.D. 2711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

In Jashubha Bharat Singh Gohil v. State of Gujarat, [1994] 4 SCC 353, it has been held by this Court that in the matter of death sentence, the Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system."

So far as the sentence part is concerned on the touchstone of the aforesaid principles we have taken a note that at the time of recording the statement u/S 313 Cr.P.C. the age of the appellant Rafeeq was 65 years whereas at the time of examining his injuries it was mentioned that he was aged about 60 years. The role played by the appellant Rafeeq is firing upon the complainant's father who succumbed to the firearm injury at the gate of the Colvin Hospital within half an hour of the incident. After the conviction was pronounced his first bail application was rejected by this Court in 2008 and hence he remained in jail till 24.9.2012. The appellant Rafeeq who is on bail now aged about 84 years. The incident had occurred at the spur of moment on account of trivial issue of taking water from the hand pump which was situated near the house of the complainant, when Altaf, the son of the appellant Mansoor had interfered with the ladies and children who were taking water from the hand pump situated in front of the house of the complainant. The complainant's father came to pacify the dispute and had rebuked Altaf. Thereafter the appellants emerged out of their house along with their respective guns to teach lesson. As soon as they reached there, the appellant Rafeeq had fired by a single barrel gun at the complainant's father who had sustained a single shot on his abdomen who breathed his last at the gate of the Colvin Hospital when he was taken for treatment, while another son of the deceased and brother of the complainant died on the spot on account of fire made by accused Kaleem Ahmad who is the son of Rafeeq. The appellant Kaleem Ahmad has already been declared juvenile by the Juvenile Justice Board and hence his conviction has been set aside by another Division Bench of this Court by order dated 9.7.2016. At the same time, appellant Mansoor had fired upon Puddan who had sustained injury over his neck and shoulder and thus all the accused persons had fired single shot from their respective weapons which proved to be fatal in respect of father and son of the complainant. They all had participated sharing common intention of each. Under these circumstances, in any event, the offence is relatable of homicide not amounting to murder punishable u/S 304-I read with Section 34 IPC against the appellants, considering the gravity of offence and brutal manner of attack. The role played by each of the accused demonstrates that they shared common intention. In view of the fact that the occurrence took place in the year 1990 i.e. more than 28 years have elapsed and also taking into account the over all aspect of the case in the back of the principle governing awarding appropriate sentence, we feel that even on a liberal approach, custodial sentence of ten years would meet the ends of justice.

The appellant Mansoor has been convicted and sentence u/S 307/34 for ten years R.I. and Rs.2000/- cannot be said to be disproportionate as he has joined with other accused persons in committing ghastly murder in which two innocent persons have lost their life. Since the appellant Mansoor has been attributed the role of firing upon Puddan, his intention to commit offence along with other persons to eliminate them cannot be ruled out, hence it cannot be said that his case comes only within the purview of Sections 323,324 IPC on the basis of the injuries suffered by the injured Puddan.

In the result, we allow this appeal partly but only to the extent that instead of Section 302/34 the Indian Penal Code, the appellants Mansoor and Rafeeq are hereby convicted under Section 304-I read with Section 34 of the Indian Penal Code. We convert the sentence of life to undergo rigorous imprisonment for a period of ten years.

The fine imposed upon the appellants and the default sentence awarded to them shall remain unaltered.

In the above conspectus so far as the appellant Mansoor is concerned, he is entitled to have the benefit of reduction of sentence to the period already undergone. As the appellant Mansoor has already served maximum sentence of ten years he is directed to be released forthwith unless wanted in any other case. His bail bonds are discharged.

The appellant Rafeeq who is on bail, his bail bonds are hereby cancelled. The CJM Allahabad shall cause the abovementioned appellant Rafeeq to be arrested forthwith and be lodged in jail to serve out the remaining sentence.

With the above modification of the impugned judgment and order passed by the Court below, the appeal is allowed in part.

Judgment be certified and be placed on record.

Office is directed to certify the judgment and order to the learned Trial Court forthwith alongwith the lower court record for information and necessary compliance.

 
Order Date :-30.7.2018
 
M. Tariq
 

 

 
(Chandra Dhari Singh, J)                (Naheed Ara Moonis, J)