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JUMMA & OTHERS versus STATE OF U.P.

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Jumma & Others v. State Of U.P. - CRIMINAL APPEAL No. 496 of 1982 [2006] RD-AH 13626 (18 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Appeal No. 496 of 1982

1.Jumma

2.Mohd. Zahoor                                                   ................  Appellants.

     

                                                               Versus

     State of U.P.                                                        .............       Opp. Party.

                                                               ..........

Hon'ble M.C. Jain J.

Hon'ble V.D. Chaturvedi J.

( Delivered by Hon. V.D. Chaturvedi J. )

This criminal appeal is directed against the judgment and order dated 17.2.1982 passed by Sri R.N. Agarwal, the then IInd Addl. Sessions Judge, Rampur in Sessions Trial No. 378 of 1980 whereby he convicted the appellant Jumma u/s 302  and 307/34 I.P.C. and appellant  Mohd. Zahoor u/s  302/34 and 307 I.P.C. and  sentenced them to imprisonment for life and five years R.I. for respective offences. He also sentenced each of them to pay a fine of Rs.200/- or to undergo six months R.I. in default of payment of fine. The sentences were made to run concurrently.

The complainant Akhtar Ali (P.W.l) orally lodged a report (Ex.Ka-1)at 10.30 p.m. on 27.5.80 at P.S. Kemri, district Rampur stating that a litigation regarding the residential land was pending between him and the accused Jumma; that on the date of report (27.5.80) at about 6.00 p.m. his sister Mustafaee (P.W.3), after taking water from Becha's house, was on her way back to his house; that when she reached near the house of accused Jumma,  he and his son Mohd. Zahoor stopped her and abused her, hence an altercation started between them;  that on hearing  hue and cry his brothers Safdar and Munney (P.W.2)(injured) and uncle Habibullah (deceased) reached there; that the altercation turned into exchange of abuses; that Shahid Ahmad, Abdul Mahmood (P.W.4) and he (complainant) also reached there and saw that accused Jumma and his son Mohd. Zahoor dashed into their house and came back with knives and said that they would close the chapter of their day to day quarrels; that accused persons surrounded Munney, Safdar and Habibullah, and thereafter accused Jumma inflicted a knife blow at the chest of Habibullah, and  accused Zahoor inflicted knife blows at the chests of Munney and Safdar; that he (complainant) and witnesses raised shouts whereupon the accused Jumma and Mohd. Zahoor ran towards Jungle; that Habibullah, after entering into his (complainant's) house, fell down on a cot and died; that injured Munney and Safdar were taken to the police station on a tractor.

The investigation was conducted by Satyendra Pal Tyagi , the then Station Officer of P.S. Kamri. He was  juxtaposed as D.W.3.

Dr. G.N. Saxena conducted autopsy on the  corpse  of Habibullah on 28.5.80 at 12.30 p.m. He was aged about 55 years and about 18 hours had passed since his death. He found the following single ante mortem injury on his corpse:

(1)Stab wound 3 cm x 1 cm. x chest cavity deep over the middle part of sternum in the mid line of chest 4 cm. below from the inner end of clavicle of right side. The direction is upward and downward.

In Doctor's opinion the death was caused due to shock and haemorrhage as a result of  this injury.

The post mortem report (Ex.Ka 8) shows that pericardium  and the lower part of the left chamber was cut under injury no.1. Both chambers of heart were empty and  one litre fluid blood was found present in (left) chest cavity.

Dr. A.U. Khan examined injured Munney and Safdar on 28.5.80 at 2.05 a.m. and 2.30 a.m. respectively and prepared their injury reports Ext. Ka-10 and Ka-9 respectively.

The following injuries were found on the person of Munney:

(1)Incised wound 2.5cm x 1cm. x depth not probed over the left side upper part of chest 3 cm. lateral to the medial end of the left clavicle. Surgical emphysema present. Injury kept under observation and X-ray advised.

(2)Linear abrasion of 7 cm. in length transverse in direction over the left side chest upper part 1.5 cm. away from the injury No.(1)

The Doctor found the following two injuries on the person of injured Safdar:

        (1) Incised wound 3 cm. x 1cm. x depth not proved over the right      side  chest 6.5 cm. above and medial to the right nipple. Injury      kept under observation and X-ray advised.

         (2) Abrasion 1 cm. x 1cm. over the middle of the chin in its front.

               

The blood stained clothes of injured Munney and Safdar were collected and their memos Ex.Ka-2 and Ex.Ka-13 were prepared.

The following five injuries were found on the person of accused Jumma  on his medical examination conducted at 4.50 p.m. on 28.5.80 in jail by Dr.  N.C. Agarwal (DW-1):

(1)Incised wound 0.75 cm. x 0.2 cm. x skin deep on the left palm.

(2)Incised scratch wound 1 cm. long on the back of right hand on the root of right thumb.

(3)Multiple abrasions in an area 4 cm. x 4cm. on the inner aspect and back of right elbow.

(4)Multiple abrasions in an area 6cm. X 5 cm. on the front of left knee.

(5)Abrasion circular 0.5cm. X 0.5cm. on the back of left elbow.

According to Ex. Kha-2 proved by Dr. R.K. Sharma (D.W.2), the following injuries were found on the person of  Shahjahan Begam (daughter of the accused Jumma) on 30.5.1980 at 7.15 p.m.:

(1)Lacerated wound ½ cm. x ¼ cm. x skin deep present on right side of the face about 2 cm. below the right angle of mouth.

(2)Lacerated wound 2.5 cm. x ¼ cm. x scalp deep present on the head about 7 cms. from the left ear.

(3)Abrasion 2 cm. x 1cm. present on the lateral aspect of left elbow joint surrounded by swelling within area of 6 cm. x 6 cms.

(4)Abrasion present on the palmer aspect of the left middle finger in its middle part.

(5)Contusion 4 cm. x 3cm. present on left side of chest about 6 cm. below the left sterno clavicular joint.

(6)Contusion 8 cm. x 8 cm. in size present on lateral aspect of right thigh about 25 cms. above the right knee joint.

(7)Contusion 8 cm. x 8cm. In size present on lateral aspect of right thigh about 12 cms. above the right knee joint.

(8)Contusion 7 cm. x 7 cm. in size present on lateral aspect of upper part of left thigh about 25 cm. above left knee joint.

The Doctor noted in Ex.Ka-2 that the duration of injuries was four days  as told by the patient.

Dr. R.K. Sharma (D.W.2) also proved the injury report (Ex.Kha-3)of Smt. Bhoori wife of accused Jumma. Her injury is reproduced below:

   (1) Contusion about 15cm. x 8cm. in size present on the lateral side         of left upper arm starting from the middle part of deltoid region         and lower margins present up to 8 cms. from the left elbow joint.

The Doctor mentioned that her injury was about four days old as told by the patient. She was examined on 30.5.80 at 7.35 p.m.

After preparing the site plan and other relevant documents and after recording the statements of the witnesses, the Investigating Officer submitted charge sheet against the appellants.

Accused Jumma was charged u/ss 302 and 307/34 I.P.C. whereas accused Zahoor was charged u/ss 307 and  302/34 I.P.C. They denied the charges.

The prosecution produced Akhtar Ali (P.W.1), Munney (P.W.2), Mustafaee (P.W.3) and Abdul Mahmood (P.W.4) and also filed an  affidavit of  constable Onkar Singh.

The court examined  Dr. J.P. Saxena Surgeon (C.W.1) and constable U.D. Khan (C.W.-2).

In statement u/s 313(1)(b) Cr.P.C. the accused appellant Jumma took the plea of right of private defence of person stating that the water carried by  Mustafaee fell on his clothes (worn by him for Namaz) whereupon an altercation took place; that thereafter Munney and Safdar armed with lathies and  Habibullah armed with knife entered his house with the intention to commit his murder; that they attacked him causing injuries; that when his daughter Shahjahan Begam, wife Bhoori and daughter-in-law Sahana came for his rescue, they (ladies) were also assaulted by them;  that he wielded knife in his defence; that when he went to lodge the report at Police Station Civil Lines Rampur, he was arrested there.

Accused Mohd. Zahoor pleaded that he was not present at his house at the  time of  occurrence as he had gone to village Nalif  Nagala to attend the marriage of his brother-in-law.

The accused persons in their defence produced D.W.-1 Dr. Naresh Chandra Agarwal , D.W.2 Dr. R.K. Sharma and D.W.3 Sri S.P. Tyagi (who conducted the investigation also).

The gist of the  evidence is being given below:

P.W.1 Akhtar Ali(complainant) deposed  that there was a dispute between him and accused persons regarding a piece of residential land; that a case u/s 107/117 was pending between them; that accused Jumma was father of accused Mohd. Zahoor; that on the date of occurrence at about 6.00 p.m. his sister Mustfaee was returning after taking water from Becha's house; that when she reached near the house of accused Jumma, the accused persons stopped her and abused her whereupon an altercation started between them; that his brothers Munney and Safdar and thereafter he and his uncle Habibullah reached there; that looking upon them,  accused persons said that they would close the chapter of day-to-day quarrel and thereafter they brought  knives from their house and inflicted knife blow on Habibullah; that accused Mohd. Zahoor inflicted knife blows on Munney and Safdar; that thereafter accused persons ran away towards South; that Habibullah ran and fell down on a cot in his (witness's) house and died; that Munney and Safdar in injured condition were taken to the police station on a tractor. He proved the written report Ex.Ka-1. In cross-examination, he denied the presence of Smt. Bhoori, Shahjahan Begam and Smt. Sahana at the place of occurrence. He pleaded  his ignorance about injuries sustained by these ladies.

P.W.2 Munney (injured) deposed  that there was a dispute between him and accused persons and a case u/s 107/117 Cr.P.C. was also pending between them; that on the date of occurrence at about 6.00 p.m. his sister Mustafaee was bringing water from the house of Becha; that accused Jumma and Mohd. Zahoor stopped her at their door and abused her; that hearing hue and cry, he, his brother Safdar and uncle Habibullah and thereafter his another brother Akhtar and witnesses Abdul Mahmood and Sayeed Ahmad reached there; that accused persons declared that they (accused) would decide their matter that very day; that thereafter accused persons brought knives from their house, surrounded him, Habibullah and Safdar and inflicted knife blows on Safdar and him (witness); that accused Jumma inflicted a knife blow on Habibullah; that he (witness) wielded   his 'Paina' ( a wooden device having a nail, meant for controlling cattle) in his defence; that on being challenged by the witnesses, accused persons went towards southern side; that Habibullah ran to his (witness's) house and died after falling upon a cot; that he and Safdar were brought to the police station on a tractor where their blood stained clothes were taken by the police; that he and Safdar were sent to hospital for their medical examinations.

P.W.3 Mustafaee deposed that on the date of occurrence at about 6.00 p.m. she, after taking water from the tap of Becha, was returning to her house; that when she reached near the house of accused Jumma, he asked her not to pass through that pathway failing which he would break her legs; that she asked him about the pathway wherefrom she might pass; that the accused Jumma started abusing her; that meanwhile Munney, Safdar, Habibullah,  Akhtar, Sayeed Ahmad and Mahmood reached there after hearing hue and cry; that accused Jumma and Mohd. Zahoor brought knives from their house and surrounded Munney, Safdar and Habibullah; that Mohd. Zahoor inflicted knife blows on Munney and Safdar whereas Jumma inflicted knife blow on Habibullah; that they sustained injuries; that her brother Munney wielded his Paina in his defence; that her uncle (Habibullah) ran towards her house and fell down on a cot and died. In cross-examination she told that Mahboob (P.W.4) was not the real brother of her mother-in-law.  She denied the suggestion that water carried by her fell upon the clothes of Jumma whereby his clothes became dirty; that Jumma told  her that her erratic movement made his clothes dirty; that she replied as to why he was standing there and she stressed that she would  pass from the way of her choice; that she, thereafter, made its complaint at her house whereupon Safdar, Munney and Habibullah assaulted Jumma and the ladies of Jumma's family; that Jumma in his self defence had assaulted them. She also denied the suggestion that she did not witness the occurrence.

P.W.4 Abdul Mahmood deposed  that at the time of occurrence  he was returning from the mosque; that he heard the noise of quarrel so he reached at the door of Jumma where he saw that Jumma, Mohd. Zahoor, Akhtar Ali, Mustafee, Safdar, Munney and Habubullah were exchanging abuses; that Jumma and Mohd. Zahoor brought knives from their house; that Mohd. Zahoor inflicted knife blows on Munney and Safdar and  Jumma inflicted knife blow on Habibullah; that accused persons ran away towards South; that Habibullah ran and fell down at the door of Munney and died.

The prosecution also filed an affidavit of constable Omkar Singh who swore that dead body of Habibullah was handed over to him after inquest and he in turn handed it over to the Doctor for its postmortem; that corpus of Habibullah remained intact during his custody.

Dr. J.P. Saxena (C.W. 1) was examined  as expert witness under the  orders of the Sessions Judge. He gave expert opinion that the duration of the injuries of Smt.Shahajahan and Smt.Bhoori mentioned on Ext. Kha-2 and Kha-3 could not be assessed for want of sufficient data;  that the formation of scab (Khurant) on abrasion starts after 24 hours; that no scabbing (Khurant) was mentioned in injury reports and therefore, the duration of abrasions was not beyond 24 hours. Regarding contusion he told that it changes its colour from blue to green after three days.  

C.W.-2 deposed that accused Jumma was brought at police station Civil Lines and he made its entry in the General Diary.

D.W.1 Dr. Naresh Chandra Agrawal  proved injury report (Ex.Kha-1)of accused Jumma. D.W.2 Dr. R.K. Sharma proved the injury reports Ex. Kha-2 and Kha-3 of Smt. Shahjahan Begam and Smt.  Bhoori. D.W.3 Satyendra Pal Tyagi deposed that accused Jumma gave application to Superintendent of Police regarding his cross-version; that he (witness) did not remember whether it ever reached him (witness) or not; that he never made any inquiry on the said application of Jumma. He proved the signatures of Rajendra Prasad ( C.O. ) on paper no. 44 Kha-2 as Ext. Kha-4;  D.W.3 S.P. Tyagi is a person who conducted the investigation of this case but was juxtaposed as defence witness.

We have heard the arguments of Senior Advocate Sri G.S. Chaturvedi,  for the appellants and that of learned A.G.A. Miss N.A.Moonis representing the State and have also gone through the record carefully.

The learned counsel for accused appellants argued that the injuries sustained by accused Jumma, his wife Smt. Bhoori and his daughter Smt. Shahjahan Begam were not explained in the F.I.R.; that the complainant, therefore, did not come with clean hands; that after the  altercation between Jumma and Smt. Mustafaee,  Munney and Safdar (both armed with lathies) and  Habibullah (armed with knife) reached at the house of Jumma and attacked  him with lathis and knife; that when Smt. Bhoori, Smt. Shahjahan Begam and Smt.Shahana reached for his rescue, they were also assaulted by them; that Jumma, in his right of private defence, wielded a knife and thus caused injuries to deceased Habibullah and injured Safdar and Munney; that accused Mohd. Zahoor was not present at all at the time and place of occurrence and  he was falsely implicated. He added that when Jumma reached at police station Civil Lines Rampur to lodge a report of his version, he was arrested  and  sent to jail; that thereafter Jumma gave an application of his cross version to Superintendent of Police, Rampur but it resulted into an abortive inquiry.

Firstly, we prefer  to examine whether the injuries of Smt. Bhoori and Smt. Shahjahan Begam or of Smt. Sahana  (if any) commensurate  or not with the time of  occurrence.

There is no injury report of Smt. Sahana, hence she cannot be presumed to have sustained any injury at the time of occurrence.

The duration of injuries of Smt. Shajahan Begam and Smt. Bhoori as mentioned in Ex.  Kha-2 and Ext. Kha-3 is "four days". They were examined on 30.5.80 at 7.15 p.m. and 7.35 p.m. respectively. The occurrence took place only three days back i.e. on 27.5.80 at about 6.00 p.m. Thus, the duration of  injuries sustained by them did not commensurate with the date and time of  occurrence.

It is noteworthy that said duration of "four days" was not based on any scientific or medical reason but was based on what was stated by  Smt. Shahjahan Begam and Smt. Bhoori to the Doctor, as is evident from Ex.Kha-2 and Ex.Kha-3..

In these injury reports there is no mention about the formation of Khurant on abrasion. Hence the duration of injuries no.3 and 4 of Smt. Shahjahan Begam could not be deemed  more than 24 hours old.

The colour of the contusions of Smt. Shahjahan Begam and of Smt. Bhoori is not mentioned at all in injury reports. Therefore, the duration of injuries no.5,6,7 and 8 of Smt. Shahjahan Begam and injury no.1 of Smt. Bhoori is not ascertainable at all. The duration of the remaining injuries (injury no.1 and 2 of Smt. Shahjahan Begam) is also not ascertainable. Hence we find ourselves unable to accept the argument that the injuries to Smt. Shahjahan Begam or to Smt. Bhoori were caused on the date and time of the occurrence in the course oflthe same incident.

Smt. Shahjahan Begam and Smt. Bhoori or  Smt. Sahana were never examined in Court to support the defence plea that they sustained injuries at the time of occurrence. P.W.l Akhtar Ali, emphatically  denied the suggestion about their (ladies) presence at the place of occurrence.

The statement of the accused Jumma recorded u/s 313 Cr.P.C. was neither on oath nor it was open to the test of cross-examination. Therefore, it cannot take the place of proof. Therefore, there is nothing before us to infer  that Smt. Bhoori, Shahjahan Begam or Smt. Sahana sustained any injury at the time of occurrence in the same transaction.

We cannot ignore that the injuries  sustained by the accused Jumma were of very minor nature. His injuries were either the abrasions or the incised wounds of very small size. (Jumma's injuries are already referred to above). Injured Munney (PW2) and other witnesses (P.W.1, 3 and 4) gave a vivid description of the occurrence. They were cross-examined to a considerable length. The testimony of these prosecution witnesses including the injured witness could not be thrown out merely because accused appellant Jumma had sustained few minor injuries which were not explained in the F.I.R. In this regard, we are fortified by a  pronouncement of Hon'ble Supreme Court reported in 2006 AIR S.C. page 1639. In view of the said pronouncement of Hon'ble Apex Court, non explanation of the injuries of the accused which are minor in nature, will not dislodge the prosecution case.

It will not be irrelevant to mention here that P.W.2 Munney (injured) and P.W.3 Smt. Mustafaee had stated in their statements in court that he (Munney)  wielded his paina in his defence.

Appellant Jumma's plea was that Safdar and Munney armed with lathies and Habibullah armed with knife attacked him and he, in his right of private defence, caused injuries to them by a knife. The age of appellant Jumma was 80 years when his statement u/s 313 Cr.P.C. was recorded. Munney and Safdar were of young age. It was not probable at all that on attack by three persons (two of whom were of young age and were armed with lathies). Jumma (aged about 79-80 years)  would have sustained only those minor injuries which are mentioned in Ex. Kha-1.

For the reasons discussed above, the plea of right of private defence of appellant Jumma,  completely fails.

Accused-appellant Mohd. Zahoor produced no evidence in support of plea of alibi. Hence his plea also fails.

The learned counsel for the appellants drew our attention to Ext. Ka.4 which shows that appellant Jumma gave an application dated 14.7.1980 to S.P. Rampur which Rajendra Prasd C.O. sent to D.W.3 Sri S.P.Tyagi (I.O.) for necessary action. He argued that appellant's cross version was given in the said application but it resulted into an aborted enquiry.

The occurrence took place on  27.5.1980 whereas the application containing alleged cross version was given to the S.P. Rampur on 14.7.1980 i.e more than one and half months after the occurrence. Such application, if any, lost its importance by gap of time. Had there been any truthfulness in the plea of right of private defence, it could be communicated immediately by Jumma or appellant Mohd. Zahoor or by any other person through a telegram or through postal message. Such application containing the defence plea given after one and half months, fails to convince us regarding the truthfulness of the defence version.

The prosecution successfully established its case beyond doubt. The appeal is, therefore, dismissed. The conviction and sentences awarded by trial court are  upheld.

The appellant Jumma and Mohd. Zahoor are on bail. Their bail is cancelled. The C.J.M. Rampur shall cause them to be arrested and lodged in jail to serve out the sentences awarded by the trial court. He will send the compliance report within two months, from the date of the receipt of the copy of this order.

Certify this judgment to the lower court immediately.

Dated:18.8.2006

Hsc/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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