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SUPREME COURT OF INDIA
M.H. BEG AND P.K. GOSWAMI, JJ.
Faquira, Appellant
Versus
State of U.P., Respondent.
Criminal Appeals Nos. 207 and 167 of 1974
Decided on 12-11-1975.
Indian Penal Code,1860 - Section 302/34 – Murder Case -Appeal Against Conviction - Convicted accused who has not appealed and murdered man Jamil Ahmed alias were both Richkshaw pullers who used to keep their Rickshaw near the Chabutra of at where two main roads, in Police Station Ganj in city of Rampur crossed - One aged about years, used to keep a Khoncha on opposite side of crossing facing the Chabutra - She used to prepare and sell potato chops to her customers - It appears that deceased Chhanga was sitting near Khoncha while she was preparing a potato chop for him at about on - It is in evidence that brought and appellants in his Rickshaw from which they got down and Rickshawala and its two occupants came and asked Smt. to give some potato chops to them. She is said to have replied that she would serve them only after the deceased Chhanga had been served - And his two companions are said to have taken offence and to have insisted on having priority over the deceased Chhanga Thereupon, Chhanga is said to have objected on the ground that he was getting a chop prepared for himself 916 and must have it first - He told three men who had left the Rickshaw behind, that they could only get theirs after he had been served - An exchange of hot words and abuses is said to have followed – Court do not know whether it was hunger or something else behind the whole affairs or the nature of abuses hurled by the deceased that provoked appellants so much - All court know is that the three accused became suddenly so infuriated that and are said to have caught hold of Chhanga and dragged him to Chabutra and told to attack him as Chhanga was "a great bully" - Thereupon, is said to have brought out a knife from the folds of his pyjama and inflicted a succession of knife blows on Chhanga whilst and held him down - It was alleged that P. W. 1, and Ali, P. W. 2, and one Khan and (not produced) who were sitting on Chabutra, near which an electric bulb lit scene saw whole incident in addition to P. W. 4. An F. I. R. of incident was lodged at about at Police Station Ganj setting out facts which have been duly supported by three eye-witnesses, mentioned above who stood cross-examination well - Court have been taken through relevant evidence against which some criticism which is not sufficient to enable us to discard his evidence was levelled - This Court does not interfere with findings on questions of fact on the strength of minor discrepancies which only indicate that witnesses were not tutored - Fact that apparent motive was too flimsy is no reply to unshaken testimony of creditable and natural eye-witnesses who had no motive whatsoever to implicate the appellant falsely. It was also sought to be shown that the appellant and had not been on good terms with each other and would not, ordinarily join in an attack on Chhanga - This suggestion was made as was shown to have got arrested in some gambling case. We, however, do not think that this is a ground to disbelieve the prosecution case. People of the kind to which and seem to belong do not generally attack much importance to such matters - Evidence indicates that they were on quite good terms with each other at time of incident whatever may have been their past relations - They came together like friends to have some potato chops – Appeal Dismissed
JUDGMENT
BEG, J.:— The appellant Faquira was convicted under Section 302, Indian Penal Code and sentenced to death by the Sessions Judge of Rampur. He had been tried with two co-accused, Shiamlal and Bhukan, who had been acquitted for offences punishable under Section 302 read with Section 34, Indian Penal Code, but, on a Government appeal having been filed against their acquittals, these acquittals were set aside and they were convicted and sentenced to life imprisonment. There are two appeals before us now: one by Faquira, and the other by Shiamlal. It appears that Bhukan, who, together with Shiamlal, had been convicted under Section 302/34, I. P. C., does not question the correctness of his conviction and sentence.
2. The prosecution case was that Bhukan, the convicted accused, who has not appealed and the murdered man Jamil Ahmed alias Chhanga were both Richkshaw pullers who used to keep their Rickshaw near the Chabutra of Mozzam Ali at Darakhat Kait, where two main roads, in Police Station Ganj in the city of Rampur crossed. One Smt. Uttamia, aged about 35 years, used to keep a Khoncha on the opposite side of the crossing facing the Chabutra. She used to prepare and sell potato chops to her customers. It appears that the deceased Chhanga was sitting near Khoncha while she was preparing a potato chop for him at about 7.45 p. m. on 23-4-72. It is in evidence that Bhukan brought Faquira and Shiamlal appellants in his Rickshaw from which they got down and the Rickshawala and its two occupants came and asked Smt. Uttamia to give some potato chops to them. She is said to have replied that she would serve them only after the deceased Chhanga had been served. Faquira and his two companions are said to have taken offence and to have insisted on having priority over the deceased Chhanga Thereupon, Chhanga is said to have objected on the ground that he was getting a chop prepared for himself 916 and must have it first. He told the three men, who had left the Rickshaw behind, that they could only get theirs after he had been served. An exchange of hot words and abuses is said to have followed. We do not know whether it was hunger or something else behind the whole affairs or the nature of abuses hurled by the deceased that provoked the appellants so much. All we know is that the three accused became suddenly so infuriated that Bhukan and Shiamlal are said to have caught hold of Chhanga and dragged him to the Chabutra and told Faqira to attack him as Chhanga was "a great bully". Thereupon, Faqira is said to have brought out a knife from the folds of his pyjama and inflicted a succession of knife blows on Chhanga whilst Bhukan and Shiamlal held him down. It was alleged that Mozzam Ali, P. W. 1, and Farzand Ali, P. W. 2, and one Nabu Khan and Matloob Ahmed (not produced) who were sitting on the Chabutra, near which an electric bulb lit the scene, saw the whole incident, in addition to Smt. Uttamia, P. W. 4. An F. I. R. of the incident was lodged at about 8.40 p. m. on 23-4-72 at Police Station Ganj setting out the facts which have been duly supported by the three eye-witnesses, mentioned above, who stood cross-examination well.
3. Dr. Sabir Hussain, P. W. 3 who conducted the post mortem examination of the body of Chhanga, the victim who died almost immediately as a result of the injuries the proved following injuries on the person of the deceased:
"1. Incised punctured wound 4 cm x 1/2 cm x cavity deep on left side back 6 cm below the ribs direction horizontal.
2. Incised punctured wound 2.5 cm x 1.5 cm x chest cavity deep on right side 5 cm below right clavicle direction from upward to downward.
3. Incised wound 1 cm x 1/2 cm x 1/4 cm on left side chest 11cm below left nipple horizontal.
4. Incised punctured wound 4 cm. x 2 cm. x cavity deep on front on chest upper part inner to medial and of left clavicle horizontal.
5. Incised wound 5 cm. x 2 cm. x 2 cm on left side neck 3.5 cm. below angle of left jaw horizontal.
6. Incised wound 7 c
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