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2012 Supreme(All) 3026
[2013(1) ADJ 28 (DB)]
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI AND ANIL KUMAR SHARMA, JJ.
JEESAN AND OTHERS ......Appellants (In Jail)
Versus
STATE OF U.P. ......Opposite Party
(Criminal Appeal Nos. 4458 and 4460 of 2003, decided on 21st November, 2012)
Counsel :
Rajeev Gupta, Dileep Kumar, P.N. Mishra, Apul Misra, R.B. Sahai, Ambrish Sahai, R.P.S. Chauhan, Mukhtar Alam and R.P. Yadav for the Appellants; A.B. Maurya, Satish Trivedi, Imran Ullah, Manish Tiwari, A.K. Awasthi, A.K. Singh, Kayoom Ahmad, Shivaji Srivastava, Amir Khan, Syed Ali Murtaza and A.G.A. for the Opposite Party.
Headnote:(A) (Indian) Penal Code, 1860—Sections 147, 148, 307/149 and 302/149—Evidence Act, 1872—Section 27—Double murder—Injured eye-witnesses—Complainant proved her written report—Prompt FIR—Both parties are closely related to each other—A day before incident there was some dispute—Death caused on account of injuries sustained by deceased persons—Accused persons are named in FIR—Delayed medical examination—Defence cannot get any advantage—Statement of PW-2 finds full corroboration from medical evidence—No material discrepancy—Statement of witness is cogent and clear—No inconsistency in eye-witness account of incident with medical evidence—Recovery memo prepared on spot and its copy supplied to accused persons—Recovery is admissible under Section 27 of Act—Plea of alibi—Delayed—Not taken prior to statement under Section 313 of Cr.P.C.—It creates doubt—High Court observed conviction both under Sections 147 and 148 absolutely illegal—A person cannot be held guilty on both counts—Conviction upheld. [Paras 15 to 17, 24, 25 to 27, 29 and 33]
(B) Criminal Trial—FIR—Prompt lodging—Importance of—It rules out possibilities of deliberations and concoction in making of prosecution story—Such FIR can safely be taken into consideration during trial. [Para 15]
(C) Criminal Trial—Alibi—Plea of—Proving of—It had to be proved with absolute certainty—So as to completely exclude possibility of presence of appellants accused on spot at relevant time. [Para 30]
Hon’ble Anil Kumar Sharma, J.—Both these appeals arise out of the common judgment and order dated 10.9.2003 passed by Additional Sessions Judge (Fast Track Court No. 4), Budaun in S.T. No. 486 of 2000, under Sections 147, 148, 307/149 and 307/149 IPC (Crime No. 351 of 1999) and in S.T. No. 487 of 2000, under Section 25 Arms Act (State v. Jeesan, Avan and Ishrar), whereby the appellants have been convicted and sentenced as under :
The sentences awarded to each of the appellants were to run concurrently. Both these appeals have been heard together and are being disposed of by this judgment.
3. The facts germane to the appeals are that on 15.12.1999 at about 7.30 a.m. Smt. Shahida Begun, wife of Gulam Rasool, resident of Hamupur Chamarpura, P.S. Sahswan, district Budaun submitted a written report scribed by Hasmat Hussain in P.S. Sahaswan wherein she stated that there was old enmity on account of the election of Pradhan between her family and the family of Jeesan and others. Yesterday, in their village there was scuffle between the Faqirs and her husband Gulam Rasool settled their dispute which was not liked by Jeesan and others and they have threatened her husband. On 15.12.1999 at about 7.30 a.m., her husband while going towards the Faqirs reached near the culvert, accused Jeesan, Rihan and Avan sons of Viqar and Afzal s/o Zulfiqar having guns in their hands and Ishar son of Abrar alias Raja armed with country made pistol surrounded him and started hurling abuses. On hearing the commotion the complainant, her brother in law Rijwan and her son Javid reached at the spot and then Jeesan exhorted his companions to kill them. All the accused persons in furtherance of their common intention to kill opened fire from their respective weapons and beat them with butts of weapons, whereby her husband, brother-in-law and son were badly injured and fell down. The complainant also suffered injuires on her eye. This incident was witnessed by Haseeb son of Ghasi Khan, resident of Village Bazpur, Fazle son of Tahir Ali and Sunavvar son of Musabbir Ali, Kallu son of Riyazi, resident of Village Chamarpura, Tasavvar son of Evaz, resident of Village Baazpur and others who arrived at the scene of occurrence, challenged them. The accused, giving life threat left the scene of occurrence. The complainant alongwith her injured husband, brother-in-law Rijwan and son Javid reached the police station Sahaswan and submitted the written report.
4. On the basis of this report Case Crime No. 351 of 1999, under Sections 147,148, 149, 307 and 506 IPC was registered at Police Station Sahaswan, district Budaun, investigation whereof was entrusted to SI Ram Baran Singh. The injured were sent for medical examination to Public Health Centre, Sahaswan, but due to critical condition of the injured, they were taken to District Hospital Budaun. However, injured Gulam Rasool succumbed to the injuires on way to the hospital. Dr. D.V. Shakya examined injured persons in District Hospital, Budaun on 15.12.1999 from 9.50 a.m. onwards. The doctor has noted in the report Ext. Ka-5 that Gulam Rasool was brought dead in emergency OPD at 9.30 a.m. of 15.12.1999 and his dead body had been kept in the mortury. Dr. D.V. Shakya found the following injuries on the person of other injured:
Javid-at 9.50 a.m.
(i) A fire-arm wound of entry of size 2.5 x 2 cm. x on left side neck 5 cm. below left ear, margins inverted, blackening present at margins, fresh bleeding present;
(ii) A fire-arm wound of exit of size 7 x 6 cm. x communicating to injury No. 1. Left side face extending from angle of mouth to left side chin, margins everted, mendible left side exposed, profuse bleeding present;
(iii) Fire-arm would of entry of size 4 x 2 cm. x muscle deep palmer aspect left hand at base of left thumb;
(iv) Fire-arm wound of entry of size 4 x 1.5 cm. x bone deep on palmer aspect of left ring finger. Wound placed parallel to finger.
In the opinion of the doctor injury No. 1 to 4 were caused by
