Mohd.Yusuf
Vs. State of U.P [1994] INSC 64 (27 January 1994)
Ray,
G.N. (J) Ray, G.N. (J) Reddy, K. Jayachandra (J)
CITATION:
1994 AIR 1542 1994 SCC Supl. (2) 32 JT 1994 (1) 195 1994 SCALE (1)239
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by RAY, J.- This appeal is directed against
judgment dated September
6, 1983, passed by the
Division Bench of the High Court of Allahabad (Lucknow Bench) in Criminal
Appeal No. 910 affirming the conviction under Section 302 IPC against the
appellant by the Additional Sessions Judge, Pratapgarh, dated November 5, 1976
in Sessions Trial No. 114 of 1973 and sentence of life imprisonment for the
aforesaid conviction.
2.The
short facts of the prosecution are that an anti- dacoity squad was sent from
Police Lines, Pratapgarh to Police Station, Baghrai. The original squad
consisted of Head Constable Ram Iqbal Tewari PW 7 and three constables Ram Jatan
Rai, Radhey Shyam Pandey and Ram Prasidha Pandey.
Subsequently
there were changes and at the relevant time this squad consisted of Head
Constable Mohammad Yaqub, Constable Ram Dhani Singh, Constable Ramanand Pandey
and Constable Mohammad Yusuf, the convicted appellant. On June 21, 1973, this squad was in Village Ramgarh Banohi.
It was scheduled to move for Phulpur on June 22, 1973. The squad reached Village Bihar at
about 4.00 p.m. Thereafter, the squad on reaching
the grove of one Ahamad Husain + From the Judgment and Order dated September 6,
1983 of the Allahabad High Court in Crl. A. No. 910 of 1976 33 PW 3, Mohammad Yaqub
a Head Constable (PW 1) asked Mohammad Yusuf the appellant, and Ramanand Pandey
deceased to bring Chaukidar from Naya Purwa. When the said two persons had gone
about 50-60 steps away from the grove, there was exchange of abuses between the
accused and the deceased and thereafter the other persons of the squad rushed
towards the side along with some other persons who had arrived at that place.
In the meantime, the accused fired three consecutive shots with his rifle at
the deceased Ramanand Pandey as a result of which the said Ramanand Pandey died
on the spot.
A
written report of the said incident was sent to the Police Station, Baghrai by
Mohammad Yaqub, Head Constable (PW 1) and the case was registered and initial
investigation was conducted by Shri Amir Hasan Zaidi, Station Officer of Police
Station, Baghrai. The said officer reached at the spot but thereafter the
investigation was handed over to one Shri Lakhpat Singh PW 13. Charge-sheet in
the said case after investigation was submitted on July 18, 1973. The appellant was arrested along with 47 live cartridges
in Village Bechu Ka Purwa a hamlet of Phoolpur Mauri which is at a distance of
three miles from the scene of occurrence at 10.30 p.m. The inquest was held and the rifle and empty cartridges
found at the place of occurrence were sealed and were despatched and the
postmortem of the deceased was conducted by Dr B.K. Bhardwaj.
3.The
doctor on conducting the postmortem had found gunshot injuries badly damaging
the vital parts of the body.
17 witnesses
were examined by the prosecution to prove the case. PW 1, PW 3, PW 4 and PW 5
were examined as eyewitnesses and they deposed in support of the prosecution.
The
Police Constable Ram Naresh Singh was an eyewitness.
Though
he was examined in the committing court, but he died on September 11, 1973. His statement, therefore, was
tendered under Section 288 of the old Criminal Procedure Code being Ext. Ka-36.
PW 3 and PW 4 and Ram Naresh were residents of Village Dewar Patti, which is
about 2 or 3 furlongs to the south of the grove of Ahamad Husain. It transpires
from the evidences of the eyewitnesses that the incident had taken place at
about 50 or 60 steps from the grove and that there was altercation between the
deceased and the appellant and the appellant fired shots at the deceased Ramanand
Pandey. The evidences of the eyewitnesses are consistent on this aspect. It may
be noted here that a suggestion was made that Ramanand Pandey was drunk and
there was fight with the butt end of the rifles between the deceased and the
appellant. The deceased aimed his rifle towards the appellant and the appellant
fired his rifle in self-defence. The appellant did not examine any witness in
his defence. The learned trial Judge after considering the evidence on record convicted
the appellant on the charge of murder and awarded a sentence of life
imprisonment.
4.In
the appeal it was contended on behalf of the appellant that the first
information report was antedated, but such submission was rejected by the High
Court. It may be noted that on June 23, 1973
when the appellant was produced before the Additional District Magistrate, Pratapgarh,
he moved an application before the learned Magistrate to the effect that first
information report had not been prepared so far. The learned Magistrate passed
an order requiring the A.P.P. to put up first information report or to submit a
report as to why the same had not been received. On the first information
report the signature of the Circle Inspector was dated June 26, 1973. The High
Court in consideration of the materials on record inter alia came to the
finding that the report of the said 34 incident had been lodged at 8.30 p.m. on
June 22, 1973. The distance of the police station was 7 miles from the place of
occurrence. There is nothing suspicious with respect to the first information
report Ext. Ka-17 or the general diary report prepared on its basis Ext. Ka-18.
The accompanying papers were sent to the doctor for postmortem and the mortuary
was 36 kilometres away from the place of occurrence. The High Court, therefore,
held that simply because the Circle Inspector received the report on June 26,
1973, it did not indicate that first information report had not come into
existence at the time alleged by the prosecution. The submission made before
the High Court that the incident had not been witnessed by any of the
eyewitnesses was not accepted and the presence of PW 1 and PW 5 could not be
doubted as they were members of the anti- dacoity squad. The contention made
before the High Court that as the prosecution had failed to establish the
origin which led to the firing, the benefit should be extended to the accused,
was, however, not accepted by the High Court in view of the positive evidence
given by PW 1 Mohammad Yaqub, PW 3 Ahamad Husain, PW 4 Chintamani and PW 5 Ram Dhani.
The
High Court having come to the finding that the prosecution has proved by
leading clinching evidence that the accused had committed the murder, upheld
the sentence passed by the learned Additional Sessions Judge. Hence, this
appeal.
5.The
learned counsel for the appellant has urged that admittedly there was
altercation and there is evidence of one of the witnesses being a member of the
said police squad that in view of the altercation both the accused and the deceased
raised their rifles. The learned counsel has contended that if a loaded rifle
was raised by the deceased then the accused was justified in firing at the
deceased in order to save his life because there was imminent danger to his
life if the deceased would have fired the rifle first.
In the
aforesaid circumstances, the courts below ought to have held that the accused
had fired by way of self-defence and as such there was no occasion to convict
him on the charge of murder. The learned counsel has also contended that in a
case like this, there cannot be any question of exceeding right to self-defence
because to stop an attempt from being fired upon by an armed police constable,
the only recourse to which the accused could take was to fire his rifle to stop
the deceased and if on such firing, the death had occurred such death could not
have been helped. The learned counsel has also contended that the genesis of
the fight between the deceased and the accused had not been noticed by anyone
because it came out in the evidence that the eyewitnesses only heard them
abusing. Hence, it cannot be said who was the real aggressor between the
accused and the deceased. It has also been contended by the learned counsel
that although it is the prosecution case that three shots were fired by the
accused but from the medical evidence it transpires that only two gunshot
injuries were found on the dead body. Such discrepancies as to the number of
shots only suggests that the witnesses had not seen the occurrence and were not
telling the truth but were resorting to imagination.
6.We
are however, unable to accept the said contentions of learned counsel for the
appellant. It has been established on evidence that 50 cartridges were issued
to the appellant and the rifle and 47 cartridges were recovered from him. Three
empty cartridges were also recovered from the place of occurrence. Accordingly,
it is established that three shots had been fired by the accused 35 from the
service rifle. The plea of self-defence cannot be accepted for the simple
reason that there is positive evidence that due to altercation and exchange of
abuses between the deceased and the accused, both the deceased and the accused
raised their rifles but when the said witnesses and the other members of the police
squad had rushed towards them, the deceased lowered his rifle but the accused
fired three shots at the deceased. Hence, there was no occasion for firing a
number of shots for the alleged self-defence and such plea has been rightly
rejected by both the courts below. It has been stated by the eyewitnesses that
in view of the altercation and exchange of abuses, the appellant had fired
three shots at the deceased from the rifle. Simply because two gunshots were
noted by the doctor, it cannot be established that three shots were not fired,
because it is not unlikely that one shot might have missed the target. In our
view, there is clinching evidence in support of the prosecution case and the
learned Sessions Judge having believed the eyewitnesses for good reasons,
convicted the accused and passed the sentence of life imprisonment against him
and the High Court having accepted the finding, affirmed the same on appeal.
There is no merit in this appeal and the same is, therefore, dismissed. The
appellant was released on bail during the pendency of the appeal in this Court,
He should, therefore, be taken into custody to serve out the remaining part of
the sentence.
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