Delhi High Court
Sagir & Others vs State (Gnct Govt. Of Delhi) on 17 December, 2013
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.452/1999
SAGIR & OTHERS .....Appellants
Through: Mr.Naveen Gaur, Advocate for
Appellant Sagir, Mr.Adarsh
Ganesh, Adv. for Appellant
Nissar, Mr.Bhupinder Mehtani &
Ms.Neha Maggu, Advs. for
Appellant Rahees and
Mr.M.K.Thakur, Adv. for
Appellants Abdul Malik and
Khurshid Ahmed.
versus
STATE (GNCT GOVT. OF DELHI) ..... Respondent
Through: Ms.Rajdipa Behura, APP for the
State.
AND
+ CRL.A.477/1999
GULAM NABI .....Appellant
Through: Mr.Khalil A.Ansari and Mr.Sunil
Sagar, Advs.
versus
STATE (GNCT GOVT. OF DELHI) ..... Respondent
Through: Ms.Rajdipa Behura, APP for the
State.
AND
+ CRL.A.565/1999
JUBAIR AHMED .....Appellant
Through: Mr.R.M.Tuffail and Mr.Vishal Raj
Sehijpal, Advs.
versus
Crl.A. No.452, 477 & 565 of 1999 Page 1 of 29
STATE (GNCT GOVT. OF DELHI) ..... Respondent
Through: Ms.Rajdipa Behura, APP for the
State.
% Pronounced on : December 17, 2013
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J
1. By filing these three appeals, the Appellants Sagir, Nissar, Rahees,
Abdul Malik and Khurshid Ahmed (in Crl.A. No.452/1999), Gulam Nabi
(in Crl.A. No.477/1999) and Jubair Ahmed (in Crl.A. No.565/1999)
impugn the judgment dated 10.08.1999 and order on sentence dated
18.08.1999 whereby Appellant Jubair Ahmed was convicted under
Sections 147/148/307/302 IPC, under Section 324 r/w 149 IPC and under
Section 25 of Arms Act and Appellants Sagir, Nissar, Rahees, Abdul
Malik, Gulam Nabi, Khurshid Ahmed and Mohd. Yamin (since expired)
were convicted under Sections 147/148/302/307/324 r/w 149 IPC. The
Appellants were sentenced in the following manner:
(i) Appellants Sagir, Nissar, Rahees, Abdul Malik, Khurshid Ahmed
& Gulam Nabi were sentenced :
(a) Under Section 302/149 IPC Life Imprisonment with fine of
Rs.1000/- each, I/D RI for four
months.
(b) Under Section 307/149 IPC RI for 7 years with fine of
Rs.500/- each, I/D RI for two
months.
(c) Under Section 324/149 IPC RI for 2 years
Crl.A. No.452, 477 & 565 of 1999 Page 2 of 29
(d) Under Section 147 IPC RI for 1 year
(e) Under Section 148 IPC RI for 2 years
(ii) Appellant Jubair Ahmed was sentenced :
(a) Under Section 302 IPC Life Imprisonment with fine of
Rs.1000/-, I/D RI for four months.
(b) Under Section 307 IPC RI for 7 years with fine of
Rs.500/-, I/D RI for two months.
(c) Under Section 147 IPC RI for 1 year
(d) Under Section 148 IPC RI for 2 years
(e) Under Section 324/149 IPC RI for 2 years
(f) Under Section 25 Arms Act RI for 1 year
All the sentences awarded to the Appellants were ordered to run
concurrently.
2. Mohd. Yamin, co-convict of the present Appellants, had also
preferred Crl.A. No.498/1999 against the impugned judgment and order
on sentence. During the pendency of Crl.A. No.498/1999, Mohd. Yamin
expired and appeal filed by him stands abated vide order dated
26.11.2013.
3. Facts
of the case bereft of unnecessary details are that case FIR
No.119/1985 under Sections 147/148/149/302/307/427/436/34, 120-B
IPC was registered at PS Shakkar Pur against Sagir, Nissar, Rahees,
Abdul Malik, Khurshid Ahmed, Gulam Nabi, Jubair Ahmed and Mohd.
Yamin on the basis of complaint Ex.PW2/A made on 09.04.1985 by
Anis Ahmed, aged 18 years, R/o 272, Khureji, Delhi, who also suffered
injury in the occurrence. He reported to the police that he was working
as Tailor with A-One Tailors. Sagir, Gulam Nabi and Rahees were
running a Bakery in Khureji where their salesmen used to park their
cycles in front of the shops to cause obstructions to the passers-by. The
salesmen at the Bakery shop also used to tease the women folk passing
from there. A day before, Ishtiak informed Anis Ahmed in the morning
that Jubair, Sagir, Gulam Nabi, Rahees, Mohd. Yamin, Khurshid Ahmed
(in the complaint Ex.PW2/A his name is mentioned as Khurshid Alam)
and Abdul Malik had conspired to enter into quarrel with the people of
the locality.
4. On 08.04.1985 at about 8.00 pm, he (PW-2 Anis Ahmed)
alongwith Ishtiak and Mohd. Yusuf was present in the gali and they were
talking to each other when one person (who remained unidentified) came
from the shop of Jubair and slapped Ishtiak which was objected to by
him and Mohd. Yusuf. In the meantime, Jubair, Nissar, Gulam Nabi,
Rahees, Abdul Malik, Mohd.Yamin, Khurshid Ahmed and their
associates whom he could identify, also came out and abused them.
They also said, 'Salo ko aaj jaan se maar do, jo hoga dekha jayega'. In
the meantime, Jubair picked a chhuri from a shop and attacked Yusuf on
his left arm and left side of the abdomen and thereafter attacked Ishtiak
on his abdomen. When he (PW-2 Anis Ahmed) and Shafi Mohd. tried
to intervene, they were also attacked by Jubair with the churri he was
carrying and his associates continued abusing them exhorting Jubair to
finish all of them. Rahees hit him (PW-2 Anis Ahmed) with a churri
twice on his right hand and that incident had been witnessed by many
residents of the area. PW-2 Anis Ahmed also stated that Ishtiak had
expired in JPN Hospital. The associates of Jubair had also slapped them
and gave fist blows (thappar-mukko se mara) and set the cot and clothes
on fire.
5. SI Ajit Singh made the endorsement on the above statement
Ex.PW2/A and sent the rukka at 2.15 am through Ct. Hakim Miyan for
registration of the case. Case FIR No.119/1985 under Sections
147/148/149/302/307/427/436/34, 120-B IPC was registered vide DD
No.23-A dated 09.04.1985 at 3.45 am.
6. During investigation, Sagir, Nissar, Rahees, Abdul Malik,
Khurshid Ahmed, Gulam Nabi and Mohd. Yamin (since expired) were
arrested and interrogated. Appellant Jubair Ahmed surrendered in the
Court and thereafter he was taken on police remand and interrogated. On
recovery of knife from 'nala' at the instance of Jubair and from the pond
(Johadh) at the instance of Rahees, they were also booked for
committing the offence punishable under Section 25 of the Arms Act.
7. The case being a murder case, on getting the information about the
death of Ishtiak, the matter was required to be investigated by an Officer
not below the rank of Inspector. We are at a loss to understand as to why
Inspector/SHO of Police Station Shakkar Pur failed in his duty to
investigate this murder case.
8. After completion of necessary investigation, chargesheet against
all the Appellants was filed and after compliance of Section 207 CrPC,
the case was committed to the Court of Sessions.
9. All the eight Appellants were charged for committing the offences
punishable under Sections 147/148/302/307/324 read with Section 149
IPC. Appellants Jubair Ahmed and Rahees were also charged for
committing the offence punishable under Section 27 of Arms Act.
10. All the Appellants pleaded not guilty to the charge framed against
them. Prosecution examined 31 witnesses to bring home guilt of all the
accused persons. Out of the 31 witnesses examined by the prosecution,
PW-1 Mohd. Sadiq, PW-2 Anish Ahmed, PW-3 Haseen Mohd., PW-4
Mohd. Yusuf, PW-5 Shafi Mohd., PW-6 ASI Arjun Singh, PW-9
Hakimuddin, PW-12 Nissar Ahmed and PW-31 Dr.Bishnu Kumar are
the material witnesses. SI Ajit Singh, the Investigating Officer was
examined as PW-30 (Inspector on the date of examination).
11. After recording of prosecution evidence, statements under Section
313 CrPC of all the Appellants/accused persons were recorded. In their
examination under Section 313 Cr.P.C., all the Appellants/accused
persons denied the case of the prosecution having caused the murder of
Ishtiak in furtherance of common object of unlawful assembly. Even
formation of unlawful assembly with the common object to cause death
or attempt to murder the complainant, deceased Ishtiak or other injured
was denied. The Appellants rather pleaded their right to private defence
claiming the complainant and his associates to be the aggressors.
12. Appellant Jubair Ahmed has examined DW-1 Mr.Jai Kumar,
Record Clerk, SDN Hospital, DW-2 Mr.Abdul Wahid and DW-3
Dr.B.Nayak, SDN Hospital in his defence.
13. We have heard Ms.Rajdipa Behura, learned APP for the State and
Mr.Naveen Gaur, Advocate for Appellant Sagir, Mr.Adarsh Ganesh,
Advocate for Appellant Nissar, Mr.Bhupinder Mehtani, Advocate for
Appellant Rahees, Mr.M.K.Thakur, Advocate for Appellants Abdul
Malik and Khurshid Ahmed, Mr.Khalil A.Ansari, Advocate for
Appellant Gulam Nabi and Mr.R.M.Tuffail, Advocate for Appellant
Jubair Ahmed. We have also considered the rival submissions put forth
by them.
14. On behalf of Appellant Jubair, Mr.R.M.Tuffail, Advocate
submitted that learned Trial court has erred in convicting the Appellants
under Section 302/149 IPC for the reason that it was a case of free fight
taking place without any pre-meditation. He further submitted that the
stab blow resulting into death of Ishtiak has been attributed to Appellant
Jubair. It has come on record that Jubair exercised his right to private
defence on seeing that the complainant and his associates including
deceased were duly armed and were assaulting Abdul Malik and Mohd.
Yamin. In his right to private defence to save his life and property and
that of Abdul Malik and Mohd. Yamin, he lifted/picked churri from his
Bakery shop and waived the churri to save him as well as Abdul Malik
and Mohd. Yamin and in that process, injuries were received by the other
side also.
15. Mr.R.M.Tuffail, Adovcate for Appellant Jubair Ahmed, while
advancing his plea of a sudden fight and exercise of right to private
defence, proceeded to argue that at the most, it can be a case where the
Appellant Jubair exceeded his right to private defence. He further
submitted that in the light of evidence on record, he is limiting his prayer
to the extent that conviction of Jubair may be altered from Section 302
IPC to Section 304 IPC as even the prosecution case is that the churri
was picked subsequently by Jubair from his Bakery shop which rules out
any premeditation or formation of any unlawful assembly with the
common object to kill the complainant or his associates.
16. Mr.R.M.Tuffail, Advocate also drew the attention of this Court to
the material emerging on record that none of the Appellant is a Salesman
of Bakery and if it is so, the case of the prosecution that the
Mohallawalas were having a grudge against the Salesmen working at the
Bakery for the reasons, (i) parking the cycles to obstruct the passage and
(ii) teasing the females passing from there, is not proved. Rather, none
of the prosecution witness point out which of the Appellant was involved
in the aforesaid activities. While not disputing the occurrence and
blaming the complainant and other prosecution witnesses to be
aggressor, Mr.R.M.Tuffail, Advocate submitted that the conviction of
Appellant Jubair may be altered from Section 302 IPC to Section 304
IPC and the sentence awarded to him may be modified.
17. On behalf of Appellant Sagir, Mr.Naveen Gaur, Advocate
submitted that there is no evidence against this accused, hence he may be
acquitted of the charge.
18. On behalf of Appellants Nissar, Rahees, Abdul Malik, Khurshid
Ahmed and Gulam Nabi, it has been submitted that if the prayer of the
Appellant Jubair is allowed and his conviction for the offence punishable
under Section 302 IPC is altered to under Section 304 IPC, even then the
remaining Appellants cannot be convicted under Section 302 IPC or
under Section 304 IPC (if converted) or under Section 307 IPC with the
aid of Section 149 IPC. It has been urged that even if the material
contradictions, improvements and embellishments in the testimony of
complainant and eye witnesses are ignored, these Appellants can, at the
most, be convicted under Section 324/149 IPC. Further, except Rahees,
the accusations against them are only that of exhortation and giving
beatings with slaps and fist blows. Appellant Abdul Malik and co-
convict Mohd. Yamin (since expired) suffered multiple injuries in this
occurrence but the Investigating Agency as well as the prosecution
preferred not to fairly investigate the case as to how Abdul Malik and
Mohd. Yamin suffered injuries with sharp and blunt weapons when none
of the injured claims to be armed or having attacked the accused persons.
While highlighting that the cots and clothes set on fire belonged to the
accused persons and not to the complainant or his associates, it was
urged that due to this reason charges under Sections 427 and 436 IPC
were not framed against them. Prosecution failed to explain as to why
the Appellants will set on fire their own goods and how they suffered
injuries. It has been further submitted that it was a case of free fight
wherein the complainant and his associates were aggressors. As per
PW-5 Shafi Mohd., Appellants Khurshid, Nissar, Mohd.Yamin, Abdul
Malik, Gulam Nabi and Rahees reached the spot only after the stab
injuries had already been caused and hence they could not have been
convicted for causing murder of Ishtiak or for attempting to kill Mohd.
Yusuf and Shafi Mohd. with the aid of Section 149 IPC.
19. Learned counsel for the Appellants have relied upon Puran vs.
State of Rajasthan (1976) 1 SCC 28, which was also a case of sudden
and free fight, wherein the Apex Court held that constructive liability
cannot be imposed as each accused can be convicted for the injuries
caused by his individual act. Learned counsel for the Appellants
submitted that in view of the legal position enunciated in the above noted
case and the nature of injuries attributed to these Appellants, they can be
convicted only for their individual act which otherwise has been claimed
to be fist blows, they be acquitted of the charge under Section 302/307
r/w 149 IPC and may be convicted for the offence proved against them.
20. Ms. Rajdipa Behura, learned APP for the State, resisting the
aforesaid submissions made on behalf of the Appellants, contended that
from the manner in which the crime has been committed and the role
played by the Appellants, it is established on record that the offences for
which they were charged and convicted by the learned Addl. Sessions
Judge, were committed by them in furtherance of their common object of
unlawful assembly. Thus, there is no justification to interfere with the
finding of guilt recorded by the learned Trial Court.
21. We have considered the rival contentions and gone through the
testimonies of prosecution witnesses.
22. PW-2 Anis Ahmed is the complainant as well as injured in this
case who was working as tailor at the shop A-One Tailors owned by one
Naushad. He deposed that he knew Sagir, Gulam Nabi and Rahees
(Appellants herein). They were running a bakery in Khureji Khas. On
08.04.1985 at about 8 p.m., while he was standing in front of Jubair's
bakery (appellant herein) and talking to Yusuf and Ishtiak Ahmed, they
were discussing about the salesmen. At that time, salesmen of the bakery
namely Jubair, Gulam Nabi, Rahees, Sagir, Nissar, Khurshid Alam and
Yamin were standing. Jubair and others used to keep their cycles in front
of the bakery and the salesmen used to tease the girls passing from there,
to which the people of the locality used to object and asked them to
conduct themselves properly. PW-2 further stated that while they were
standing and talking, one person (not identified or arrested) came out of
the bakery shop and slapped Ishtiak to which he and Yusuf objected.
Thereafter, Jubair took out churri and gave blow to Yusuf and Ishtiak.
When he and Mohd. Shafi (PW-5) intervened, Jubair also gave churri
blow to Mohd. Shafi and Rahees gave a churri blow to him (PW-2),
whereas his companions gave danda and fist blows to all of them. Gulam
Nabi was telling them that all of them (PW-2 Anish Ahmed, Mohd.
Shafi, Yusuf and Ishtiak) should be finished and he would see it. Jubair
also gave churri blow to Yusuf and thereafter they were removed to JPN
Hospital where Ishtiak died. He made statement Ex.PW-2/A. He was
discharged from the hospital on the same night. He further stated that
accused persons put on fire their cots lying in front of the bakery shop
after he was taken to the hospital.
23. The MLC Ex.PW23/A of the complainant Anis Ahmed is of
significance to us to ascertain the facts preceding the occurrence as well
the role attributed to different Appellants in the rukka which was
substantially improved by the complainant Anis Ahmed (PW-2) and
other eye witnesses during trial. As per the MLC Ex.PW23/A :
'Date and hour of admission - 08.04.1985 at 9 p.m
Brought by - Mohd. Sadiq'
Alleged h/o assault with sharp weapon
Conscious oriented - fit for statement.
09.04.1985 at 1:35 a.m: - discharged after first aid at 2:50 a.m.
Nature of injuries - simple by sharp weapon.'
24. We note that PW-2 Anis Ahmed, at the time of making statement
Ex.PW2/A before the police, did not name the assailants or gave their
description as Salesmen or Bakerywalas. Neither the number of
assailants was given nor the weapon of offence was described as
buttondar knife which is stated to have been recovered by the police at
the instance of Appellant Jubair from a nala after about eight days of the
occurrence.
25. We find that the reasons for convicting the Appellants have been
substantially recorded by the Addl. Session Judge in paras 15 and 17 of
the impugned judgment which are extracted hereunder:-
"15. In order to prove that death of Ishtiaq was caused by the accused
persons, the prosecution had examined Anis Ahmed, Mohd. Yusuf and
Shafi Mohd, the stamped witnesses of the incident. Presence of these
three witnesses at the spot, no where come in the arena of doubt, since
all of them sustained injuries in the incident under reference. It is not the
case of the defence that these witnesses were procured and planted in the
case. Therefore, presence of the witnesses at the spot stands established
beyond doubt. Anis Ahmed unfolds the events, narrating that on 8th April,
85 at about 8 p.m. he was standing in front of the shop of Jubair and was
talking with Yusuf and Ishtiaq Ahmed. They were discussing the conduct
of the salesmen at the bakery shops in the area. Jubair, Gulam Nabi,
Rahis, Sagir, Nisar, Malik, Khurshid Alam and Yameen were standing.
Jubair and others used to keep their cycles in front of the bakery shops.
They used to tease the girls passing by that side. The people of the
locality had taken an exception to their behavior many a times. When
they were discussing the conduct of the aforesaid salesmen, one man
came out of the bakery shop and gave a slap to Ishtiaq. He (witness) and
Mohd. Yusuf objected to it. At this juncture, Jubair took out a chhuri and
wielded a blow on Yusuf and the other blow on the person of Ishtiaq. He
(witness) and Mohd. Shafi tried to intervene. Jubair gave a chhuri blow
to Mohd. Shafi and Rahis Ahmed gave a chhuri blow to him (witness).
Companions of Jubair had given fist and danda blows to all of them. He
received injuries on his head. They were taken to the hospital, where
Ishtiaq died on the same day. Facts detailed by Anis Ahmed make it clear
that there was a cause of annoyance in the locality of Khureji, Delhi
owing to the conduct of the salesman of bakery shops. People had a
grudge against them, since they used to tease the womenfolk. By parking
their cycle the salesman used to block the traffic in front of those bakery
shops and that was also a cause of annoyance. This conduct of the
salesmen was being discussed by witness Anis Ahmed with Yusuf, Ishtiaq
and Shafi Mohd. Those salesmen were aware about the feelings borne by
the locality people and that fact was brewing in their minds. When the
salesmen saw the aforesaid persons talking and discussing their conduct,
one person came out of the shop of Jubair and slapped Ishtiaq. Naturally
this disorderly behavior was to be objected and Yusuf and Anis Ahmed
took an exception to it. Their protest in this regard proved to be red rag
to the bull. Jubair took out a chhuri and wielded a blow on Yusuf and
then to Ishtiaq. Anis Ahmed and Shafi Mohd. tried to intervene. On this
Jubair gave a chhuri blow to Shafi Mohd. and Rahis Ahmed gave a
chhuri blow to Anis Ahmed. The associates of Jubair pounced upon Anis
Ahmed, Yusuf, Ishtiaq, and Shafi Mohd. and started wielding fist and
danda blows to them. The circumstances narrated by this witness gives a
graphic description of the incident. It comes over the record that tempers
of the accused persons were high when locality people were objecting to
their behavior and conduct. The accused persons had almost made up
their mind to crush the feeling of rebellion borne by the locality people.
This decision made the accused persons act in a particular way. They
could not bear Anis Ahmed, Yusuf, Ishtiaq and Shafi Mohd. talking
publically about them. To keep them within the bounds, one person came
out of the slap and gave a slap to Ishtiaq. Had Ishtiaq, Anis Ahmed and
Yusuf pocketed the insult, the situation would have been deferred to some
other day. But objection taken by Anis Ahmed and Yusuf precipitated the
incident. As the accused persons were already decided to settle the
matter once for all, Jubair came out of the shop duly armed with a
chhuri. He attacked Yusuf and Istiaq and caused stab injuries to them.
The injuries received by Ishtiaq proved to be fatal. As detailed by Anis
Ahmed Istiaq was removed to the hospital where he succumbed to the
injuries. Thus, it is evident that Anis Ahmed had testified in an
unambiguous terms that the accused persons came out of their shop
when the witnesses and the deceased were discussing conduct of the
salesmen employed at the bakery shops. One of the person slapped
Istiaq. When objections were raised by Mohd. Yusuf and Anis Ahmed,
Jubair came out of the shop duly armed with chhuri. Rahis also came
duly armed with chhuri. Other persons namely Gulam Nabi, Sagir,
Nissar, Malik, Khursheed Alam and Yameen also reached there. They
were armed with dandas and lathies. Question for consideration comes
as to whether those persons formed an unlawful assembly when Jubair
gave a chhuri blow to Yusuf and Istiaq? For an answer to this
proposition provisions of Sec. 141 of the Penal Code are to be taken into
account which are extracted thus:
"An assembly of five or more persons is designed as unlawful
assembly if the common object of the person composing that
assembly is:-
Firstly: To over awe by criminal force or show of criminal
force, the Central or any State Government or legislature of
any State, or any public servant in exercise of the lawful
power of such public servant, or
Secondly: To resist the execution of any law or of any legal
process; or
Thirdly: To commit any mischief or criminal trespass, or
other offence; or
Fourthly: By means of criminal force or show of criminal
force to any person to take or obtain possession of any
property or to deprive any person of the enjoyment of a right
of way, or of the use of water or other incorporeal right of
which he is in possession or enjoyment, or to enforce any
right or supposed right; or
Fifthly: By means of criminal force, or show of criminal force
to compel any person to do what he is not legally bound to do
or to omit to do what is legally entitled to do."
16. xxx xxx xxx
17. Now I am called upon to consider as to at what point of time
assembly of Jubair, Gulam Nabi, Rahis, Sagir, Nishar, Abdul Malik,
Khurshid Alam and Yamin turned into an unlawful assembly. Anis
Ahmed had testified that when he was talking to Yusuf and Istiaq the
aforesaid persons were standing in the shop. When the accused persons
were inside the shop of Jubair, their meeting was not calculated to excite
terror, alarm and consternation. Therefore, assembly of these persons
inside the shop was not at all an unlawful assembly. But, when Jubair
came out with a chhuri and Rahis Ahmed was also armed with a chhuri
to assault the witnesses, at that juncture the assembly of the accused
persons turned into an unlawful assembly. The other accused persons
were armed with dandas etc. Obviously they had so assembled with an
intention to commit mischief or any other offence against Anis Ahmed,
Mohd. Yusuf, Istiaq and Shafi Mohd."
26. The above reasons and conclusion derived are not even in
consonance with the details of the occurrence recorded in the rukka
Ex.PW2/A. We again record here that the statement Ex.PW2/A was
made by Anis Ahmed when he was fully conscious and oriented and was
fit to make statement. He was also discharged on the same night after
giving first aid. Perusal of rukka Ex.PW2/A reveals :
(i) the grievance of the complainant and persons of the locality was
against the salesmen working in the bakery and not against the
Bakerywalas. The complainant was informed by Ishtiak on the morning
of 08.04.1985 about the plan of Jubair, Sagir, Gulam Nabi, Mohd.
Yamin, Khurshid Ahmed and Abdul Malik to quarrel with the residents
of the area.
(ii) Though the complainant had prior knowledge about the alleged
plan of the Salesmen and Bakerywalas to have a quarrel with people of
the locality, he (PW-2 - the complainant), Ishtiak and Mohd. Shafi
preferred to indulge in talk in front of Jubair's Bakery shop on their own
and it is nobody's case that presence of complainant and his associates
were secured by the Appellants by any dubious means to execute their
plans.
(iii) On 08.04.1985 at about 8 p.m, he along with Ishtiak and Mohd.
Yusuf was standing in the gali and they were talking to each other, when
one unknown person came out of the shop of the Jubair and slapped
Ishtiak (no mention of discussion about the salesmen during talk with
Ishtiak and Mohd. Yusuf or presence of Mohd. Safiq (PW-5).
(iv) When they objected, Jubair, Nissar, Gulam Nabi, Rahees, Abdul
Malik, Mohd. Yamin, Khurshid Ahmed and their other associates came
abusing and threatened to kill them and to see the consequences later on.
He did not mention that when the above named persons came, they were
armed with any weapon.
(v) In the meantime, Jubair brought a churri and hit Yusuf on his
left arm and on the left side of his abdomen as well as Ishtiak on his
abdomen. There is no mention of all the accused persons present armed
with churri or dandas or Rahees having churri in his hand when he came
to the spot after the incident of slapping of Ishtiak or Jubair attacking
with churri pursuant to any exhortation.
27. PW-3 Haseen Mohd. is the eye witness. However, he has not fully
supported the case of the prosecution. Rather, his version of the incident
is that on hearing some noise in the gali when he came on the terrace, he
saw two persons Mohd. Yusuf and Ishtiak talking to Jubair asking him
whether he wanted to dominate him which was denied by Jubair. There
was exchange of abuses and they grappled with each other. Jubair went
to his shop and when he came out again they grappled with each other
and Jubair took out churri and inflicted injuries on Yusuf and Ishtiak. He
did not see the other persons causing injuries. In his cross-examination
by the State, learned APP failed to extract any support to the case of the
prosecution.
28. PW-4 Mohd. Yusuf is another injured and witness to the
occurrence. He has also attributed motive of the assault being objection
raised by the mohallawalas about the conduct of the salesmen of parking
their bicycles outside the bakery and teasing the womenfolk passing by.
About the occurrence dated 08.04.1985, he stated that on that day at
about 7-8 p.m while he was standing in front of the shop alongwith
Ishtiak, Anis Ahmed and Shafi Mohd and talking to each other, one
unknown person came out of shop of Jubair and slapped Ishtiak to
which they objected. At this, Jubair, Sagir, Gulam Nabi, Khurshid
Ahmed, Mohd. Yamin and Rahees started abusing. Gulam Nabi
exhorted that they all be beaten up. Jubair was armed with knife and
stabbed him on the left fore-arm and on the abdomen. When Ishtiak
rushed towards him to rescue him he was also attacked by Jubair. PW-4
also stated that other accused persons were armed with lathis and
dandas. Anis also got stab wound, but did not know at whose hands. He
stated that he was removed to hospital by his cousin Iqbal and that
Ishtiak succumbed to the injuries.
29. PW-5 Shafi Mohd. is another injured in this case. He stated that on
08.04.1985 at about 8 p.m. he along with Ishtiak and Yusuf was standing
in front of shop of Jubair and they were talking to each other. His
examination-in-chief reads as under:-
'On 8.4.85, at about 8 PM, Ishtiak and Yusuf were standing in front
of the shop of Zuber accused present in Court. They were talking to
each other. There was exchange of hot words between the two. At
that time, a tall man came out of shop of Zuber and slapped Ishtiak.
Ishtiak and Yusuf objected to that act. Then Zuber went to his shop
and brought a churri. He first attacked Yusuf with the churri and
then he attacked Ishtiak. Ishtiak got stab wound in his stomach and
he fell down. I and Anis reached at the spot. Many people
collected there. Khrushid, Nissar, Yamin, Abdul Malik, Sagir,
Rahees are present in the Court. They all reached there. They all
exhorted to kill including Gulam Nabi. Then Zuber attacked me
twice with the churri on my abdomen. Rahees attacked Anis with
churri. The other accused assaulted us with lathis and dandas.
Hearing the alarm, many people collected and all the accused ran
away. The village people collected and all the accused ran away.
The village people removed us to hospital. All my intestines had
come out due to stabbing. Ishtiak died in the J.P.N. Hospital.'
30. The above testimony of PW-5 Shafi Mohd. leads to the following
conclusion :-
(i) PW-2 Anis Ahmed (Complainant) and PW-5 Shafi Mohd. were
not present with Ishtiak and Mohd. Yusuf when they were talking to each
other and Ishtiak was slapped by a tall man.
(ii) On being objected by Ishtiak and Mohd. Yusuf to the slapping,
Jubair brought churri and attacked them.
(iii) PW-2 Anis Ahmed and PW-5 Mohd. Shafi reached the spot
thereafter.
(iv) PW-5 Shafi Mohd. Does not speak of presence of remaining
Appellants at the time of stabbing by Jubair or any exhortation by them
when Ishtiak and Yusuf were stabbed by Jubair.
31. Apart from the above injured witnesses, PW-1 Mohd. Sadiq is
another material prosecution witness in this case. As per the version
given by PW-1 on 08.04.1985 at about 8 p.m. he was present at his
bakery shop when a boy Ishtiak (not the deceased) came running to him
to inform about the quarrel in the gali. When he reached the spot, he saw
Mohd. Shafi being removed in injured condition to hospital in a TSR.
When he went inside the gali he also learnt that Ishtiak had already been
removed to the hospital by his brother Naushad and another nephew of
his, Anis Mohd. had stab wounds on his hand. He removed Anis Mohd.
to hospital and he came to know that Ishtiak had expired. He identified
the dead body of Ishtiak in the hospital.
32. PW-9 Hakimuddin was a witness to recovery of danda and sambal
etc., but he has been declared hostile.
33. PW-12 Nissar was a witness to recovery of knife from the nala at
the instance of Rahees. Rahees has already been acquitted of the charge
under the Arms Act.
34. PW-30 Inspector Ajit Singh (Sub Inspector at the time of
occurrence) was the I.O of this case. He stated that on receiving DD
No.19A Ex.PW-30/A he along with Ct. Hakim reached the hospital and
obtained MLC of injured Anis Ahmed (Ex.PW-23/A). As the injured
was declared fit for statement, he recorded his statement Ex.PW-3/A
(correct exhibit number is Ex.PW2/A), sent rukka Ex.PW-28/A for
registration of the case, on which FIR Ex.PW-28/B was registered. He
obtained MLC of other injured Mohd. Yusuf Ex.PW-24/A, Shafi Mohd.
Ex.PW-25/A and the deceased Ishtiak Ex.PW-20/A. He seized the burnt
articles and prepared the inquest report. Dead body of Ishtiak was sent
for post mortem. During investigation, the accused persons were arrested
and interrogated. On surrender of Jubair, he was also interrogated and
recovery of knife was effected from him. After completion of
investigation, charge sheet was filed in the Court.
35. In his cross-examination, though he admitted that Mohd. Yamin
was fit for statement at 11:55 p.m. but failed to explain as to why his
statement was not recorded by him and rukka was sent after Anis was
declared fit for statement at 1:30 a.m.
36. PW-31 is Dr.Bishnu Kumar who conducted post-mortem on the
body of deceased Ishtiak. He opined that death in this case was due to
haemorrhage and shock consequent upon intra abdominal injury to liver
and inferior venacava mainly via injury No.1.He further stated that all
the injuries were ante mortem and recent. The injuries No.3 and 4 were
opined by him to be surgical while injury No.1 and 2 could be caused by
a sharp single edge penetrating weapon. Injury No.1 was opined by him
to be sufficient to cause death in the ordinary course of nature by causing
intra abdominal injury.
37. Apart from the above public witnesses including the complainant
and injured, PW-6 ASI Arjun Singh is the officer to whom DDs
Nos.16A, 17A and 18A (Ex.PW-6/D1, PW-6/D2 and PW-6/D3) have
been assigned, the details of which are as under:
(i) DD No.16A recorded at 8:34 p.m from SI Ajab Singh/ PCR is
about the quarrel near bakery. DD was marked to ASI Arjun Singh
(PW-6) who left for the spot with Ct. Uday Prakash.
(ii) DD No.17A recorded at 8:40 p.m. is about fire incident at Khureji
sent through Ct. Hakim (PW-28) to ASI Arjun Singh (PW-6).
(iii) DD No.18A recorded at 8:50 p.m from Duty Constable General
Hospital, Shahdara is about admission of Shafi Mohd (PW-5) by
Salauddin in injured condition. This DD was also sent to ASI Arjun
Singh through Ct. Nandan Singh.
(iv) DD No.19A recorded at 10 p.m is about admission of Ishtiak sent
to SI Ajit Singh through Ct. Hakim Singh.
(Note: Ishtiak was declared dead at 8:40 p.m).
38. PW-6 ASI Arjun Singh had stated that at 8:55 p.m on receiving
the DDs he reached the spot and left Ct. Uday Bhan there, he visited the
General Hospital, Shahdara and obtained 3 MLCs, out of them two
patients were unfit for statement and one was fit for statement. All the
patients were referred to LNJP hospital and when he reached LNJP
hospital he met SI Ajit Singh and handed over all the three MLCs to him.
Two persons were discharged and one was admitted. Then he
accompanied SI Ajit Singh to the spot from where the burnt articles
Ex.P-1 to P-6 were seized.
39. In his cross-examination, he admitted that out of the three MLCs
obtained by him, two pertained to accused Abdul Malik and Mohd.
Yamin and that though Mohd. Yamin was fit for statement, Abdul Malik
was declared unfit for statement. He admitted that he did not make any
endorsement in the Rojnamcha regarding action taken in respect of the
DDs assigned to him.
40. During the course of arguments, learned APP for the State was
questioned as to why no investigation was conducted in respect of the
injuries caused to accused/injured Abdul Malik and Mohd. Yamin
especially when one of them was unfit for statement and it was nowhere
the case of the prosecution that the complainant or the other injured were
armed or had caused injuries to their assailants during the occurrence.
The report under Section 173 Cr.P.C. in the concluding paragraph refers
to the inquiry being conducted separately into the accusations made by
the accused persons against the complainant and their associates. But
from 1985 till date what was the outcome of that inquiry, could not be
informed to the Court. Perusal of MLC of Abdul Malik (Ex.PW-25/C)
shows that he was brought to the hospital on 08.04.1985 at 8:50 pm by
Mohd. Ayub and had four injuries including head injury being caused by
sharp and blunt weapon. He was declared unfit for statement by the
attending Doctor. For unexplained reasons, we find that despite he being
declared twice as unfit for statement by two doctors with the dates
08.04.1985 and 09.04.1985 on 09.04.1985 at 2.45 am, the following
endorsement appears on his MLC :-
"Patient need not be admitted.
First aid given and discharged
2.45 am
9.4.85 sd/-
9.4.85
(Dr.Sanjay Chugh)"
41. No investigation in respect of the injuries suffered by Abdul Malik
and Mohd. Yamin and sudden discharge at odd hours i.e. at 2:45 a.m.
supports the contention of the Appellants that the investigation in this
case was not fair and proper. It appears that with a view that accused
persons Abdul Malik and Mohd. Yamin are disabled from making and
pursuing their complaints against their opponents, they were got
hurriedly discharged and arrested in this case which is writ large from
their applications sent from Jail to the concerned Court and are placed in
TCR.
42. We note here that the prosecution has shown recovery of buttondar
knives at the instance of Jubair and Rahees. We have already noted that
Rahees had already been acquitted of the charge under Section 27 of the
Arms Act, but Jubair has been convicted for committing the offence
punishable under Section 25 Arms Act. Surprisingly, after the recovery
of buttondar knives, no opinion has been sought as to whether the
injuries suffered by the deceased/injured could be caused by these
knives. It was nobody's case that the injuries have been caused by
buttondar knives. The projection of buttondar knives to be the weapon
of offence was without even seeking any opinion whether the injuries
could be caused with the said knives. The Investigating Officer showed
the recovery of knives from running nala and pond after many days by
Jubair and Rahees by entering into nala and pond. Once Anis
(complainant) has stated that the cot and other articles were set on fire
after he left the spot, we fail to understand that as to how he would come
to know that what happened at the spot at his back especially when the
eye witnesses are claiming that after causing injuries the assailants ran
away from there. However, record reveals that two of the assailants were
admitted in hospital in injured condition and one of them was found unfit
for statement by PW-6 ASI Arjun Singh. Further no explanation is
coming forward as to how they suffered injuries with sharp and blunt
objects. It is undisputed that Jubair is not a Salesman but running a
bakery shop and that place was used by him for residence purpose.
43. The motive attributed to the Appellants for causing this murderous
attack which resulted in death of Ishtiak and injuries to Anis Ahmed,
Mohd.Yusuf and Shafi Mohd. are (i) parking of cycles in front of the
Bakery shop by Salesmen causing obstruction to the passers-by, and (ii)
teasing women folk passing from there. Surprisingly, neither the
complainant nor other injured namely Mohd. Yusuf and Shafi Mohd.
have stated that which of the Appellant was working as Salesman at
which Bakery shop. Rather it is emerging from record that except Abdul
Malik, who came from Bombay a few days prior to the occurrence in
connection with his business and was staying with Jubair at his Bakery
shop, none of the Appellant was working as Salesman in the Bakery shop
or parking his cycle in front of the shop. It is also not brought on record
as to by whom and which of the Appellant had been seen teasing the
women folk. It is also not stated by any of the injured witness that their
female family member was ever teased or any other neighbour or
resident of the locality complained to them about their female family
member being teased by any of the Appellants. Thus, the basic motive
for assaulting the complainant and his associates is not established by
prosecution.
44. We are conscious that there is always some motive for
commission of crime, but motive loses significance whenever there is
ocular evidence connecting the accused with the crime.
45. As per post-mortem report, the following injuries were found on
the body of Ishtiak :
(i) Incised stabbed wound 4X1.4 cm and abdominal cavity deep, on
the right side front of abdomen over right subconstal border at 7 th and 8th
rib junction, oblique, lower inner end being 4 cm to the right of mid line
and 117.5 cm above right heel. Both margin were clean cut, lower inner
angle acute while outer upper angle somewhat rounded. A portion of
omentum was coming out of the wound.
(ii) Linear abrasion, as if caused by the tip of a sharp weapon, 1.1 X
0.2 cm on the front abdomen just above umbilicus in midline and
transverse in direction.
(iii) Unstitched cut open drip wound 5.5 X 1.5 cm in the right groin
region.
(iv) Stitched cut open drip wound 3 cm on the lower inner part of the
left leg.
(v) Abrasion 0.5 X 0.2 cm on the back of left thumb near its base.
46. The postmortem report reveals that death was caused due to
haemorrhage and shock consequent upon intra abdominal injury to liver
and inferior venacava mainly via injury No.(i) and all the injuries were
ante mortem and recent and injury No (i) was sufficient to cause death in
the ordinary course of nature.
47. From the statements of PW-2 Anis Ahmed, PW-4 Mohd. Yusuf,
and PW-5 Shafi Mohd., it stands established that the slap incident, if any,
by some unidentified person triggered the incident. It was Jubair who
came out and others gathered after the stabbing incident. Thus, it was
only Jubair who could have been held responsible for causing the stab
injuries which resulted in the death of Ishtiak and simple injury to Anis
Ahmed and Mohd. Shafi. We note that presence of PW-2 Anis Ahmed,
Ishtiak, Mohd. Yusuf in front of bakery shop of Jubair was a fact which
could not have been known to Jubair in advance. It was Anis Ahmed
only who claims that he was informed by Ishtiak (deceased) about the
complaint of bakery salesmen to teach the Mohallawalas a lesson. In the
complaint Ex.PW2/A, PW-2 Anis Ahmed does not speak that they were
discussing the issues of conduct of salesmen while standing in front of
shop of Jubair, when Ishtiak was slapped. It is also not coming on record
that whatever they were discussing in the gali was audible in the bakery
shop of Jubair so as to give them an opportunity to form an unlawful
assembly with the common object of causing murder of Ishtiak and
causing hurt to PW-2 Anis Ahmed, PW-4 Mohd. Yusuf and PW-5
Mohd.Shafi. In such a situation, for the acts of Appellant Jubiar, the
learned Addl. Sessions Judge could not have convicted the remaining
Appellants with the aid of Section 149 IPC.
48. To invoke Exception (iv) to Section 300 IPC, the accused would
have to show that:
(i) It was a sudden fight.
(ii) There was no premeditation.
(iii) The act was done in a heat of passion.
(iv) The accused have not taken undue advantage or acted in a
cruel manner.
(v) The cause of quarrel is not relevant nor it is relevant as to
who offered the provocation or started the assault.
(vi) Similarly, how many injuries were caused during the
occurrence is also not a decisive factor.
(vii) What his important is that the occurrence must have taken
place all of a sudden, unpremeditated.
(viii) The assailants must have acted in a fit of anger without
taking undue advantage or acting in a cruel manner.
49. To bring home their case under Exception (iv) to Section 300 IPC,
it is not necessary that the accused must prove above by giving
suggestion to the prosecution witnesses. An accused can always point
out the circumstances in the prosecution evidence to establish that he is
entitled to the benefit under Exception (iv) to Section 300 IPC.
50. Appellant Jubair's act of picking the churri from the Bakery shop
and using it during the occurrence would be sufficient to clothe him with
the knowledge i.e. act was likely to cause death of Ishtiak or some other
persons involved in the fight. In the given facts and circumstances, we
are of the view that Appellant Jubair Ahmed could not have been held
guilty for committing murder of Ishtiak. Rather he could have been
convicted for the offence of culpable homicide punishable under Section
304 (Part-II) IPC.
51. We, accordingly, convert the conviction of Appellant Jubair
Ahmed from Section 302 IPC to Section 304 (Part-II) IPC. The sentence
of life imprisonment awarded to Appellant Jubair Ahmed is set aside and
he is sentenced to undergo RI for seven years for committing the offence
punishable under Section 304 (Part-II) IPC. Sentence of fine imposed on
Appellant Jubair Ahmed and remaining sentences awarded to him are
maintained.
52. So far as remaining Appellants namely, Sagir, Naseer, Rahees,
Abdul Malik, Khurshid Ahmed and Gulam Nabi are concerned, the
learned Addl. Sessions Judge could not have convicted them by
imposing constructive liability with the aid of Section 149 IPC.
53. Looking into the entire facts and circumstances of the case and the
fact that the matter pertains to the year 1985 and in the incident, plea of
private defence was raised accepting that right to private defence was
exceeded to and the nature of injury received at the hand of Rahees,
which is simple in nature and the other Appellants being held liable to
exhortation and giving beatings with slaps and fist blows from the
inception, their conviction and sentence under Section 302/149 IPC is
liable to be set aside.
54. Now, the question arises for consideration is that for what offence
the remaining Appellants, namely, Sagir, Naseer, Rahees, Abdul Malik,
Khurshid Ahmed and Gulam Nabi are liable to be convicted. We find
force in the contention of learned counsel for these Appellants that they
cannot be convicted for offence punishable under Sections 302/307/149
IPC, as till then there was no unlawful assembly. However, we are of the
view that after these Appellants assembled at the spot and formed an
unlawful assembly and the injuries caused thereafter do make them liable
to be punished for the offence punishable under Section 324/149 and
under Section 147 and 148 IPC.
55. On behalf of the Appellants namely, Sagir, Naseer, Rahees, Abdul
Malik, Khurshid Ahmed and Gulam Nabi, it has been submitted that
looking into the fact and circumstances of the case, that the case pertains
to year 1985 and the Appellants not only suffered injuries but also could
not prosecute their complaint against Anis Ahmed (Complainant) and his
associates and that Appellant Jubair was dispossessed from his Bakery, a
lenient view may be taken by the Court while awarding sentence to them.
56. As per nominal roll received the Appellants have undergone
sentence in this case as under :
(i) Sagir 1 year, 6 months and 18 days (remission earned
1month and 20 days)
(ii) Nissar 11 months and 6 days (remission earned three
months and 20 days)
(iii) Rahees 2 years, 5 months and 27 days (remission
earned five months)
(iv) Abdul Malik 1 year, 7 months and 4 days (remission earned
one month and 10 days)
(v) Khurshid Ahmed 1 year, 2 months and 20 days (remission earned
one month and 6 days)
(vi) Gulam Nabi 1 year and 10 days (remission earned two
months and 6 days)
(vii) Jubair 6 years, 8 months and 28 days (remission
earned 7 months and 23 days;
57. Looking into the entire facts and circumstances of the case and the
submissions made on behalf of the Appellants namely, Sagir, Naseer,
Rahees, Abdul Malik, Khurshid Ahmed and Gulam Nabi, their
conviction and sentence awarded to them under Section 302/307/149 IPC
is set aside. However, their conviction under Section 324/149, under
Section 147 & 148 IPC is maintained. For the offences other than under
Sections 302/307/149 IPC, i.e. Section 324/149, 147 & 148 IPC, their
substantive sentences are reduced to the period already spent by them in
judicial custody in this case. Sentence of fine imposed on them is
maintained.
58. The appeals stand disposed of in above terms.
59. Trial Court record be sent back alongwith copy of this order.
(PRATIBHA RANI)
JUDGE
(REVA KHETRAPAL)
JUDGE
December 17, 2013
'st'/'dc'
