- (1.) D. P. Gupta, J. Feeling aggrieved with the order of acquittal dated 27th August, 1997 passed by the Vth Additional District and Sessions Judge, Agra in sessions Trial No. 43 of 1975, State v. Chiraguddin and three others, under Sections 302, 302/109, 302/114, 120,201/109 IPC. PS Rakab Ganj, District Agra, the State of U. P. has preferred this appeal under Section 378 Cr. P. C.
(2.) LEAVE to appeal was granted by this by Court vide order dated 7th July, 1980. The facts giving rise to this appeal can be narrated in brief as under: Deceased Saiduddin Qureshi, aged about 52 years, was a practising advocate in the Collectorate, Agra. He used to live with his sons PW 1 Naseem and Shamim at Sadar Bhatti, Agra. He owned a jeep. He said good relations with Haji Muddan, Wahabuddin, Advocate, was the nephew of Haji Muddan, Chhotey Gaewala and very good relations with the deceased Saiduddin and used to treat him as his brother-in- law. Mushtaq was the son of Haji Muddan. Badruddin was a very respected person and had good relations with the deceased. The accused Chiraguddin and Jamil were real brothers. Mohd. Iliyas, accused was a close friend of accused Chiraguddin and accused Intezar Hussain belonged to the group of Chiranguddin. These accused had formed a group and 'partibandi' in the mohalla. The accused and the deceased were residents of the same locality. The relations of Chiraguddin with the deceased were strained. Shamim, PW 1, son of the deceased, Saiduddin, had lodged a report under Section 392 IPC against Chiraguddin, and a case was registered. He was arrested and a case was pending in the Court. The deceased, had also lodged a complaint against the accused Chiraguddin and others in the year 1971. Many more complaints were also filed by the deceased and his brothers Rashiduddin against Chiraguddin. Chiraguddin accused passed his LLB examinations in May, 1972. Then, certain persons got the matter compromised between the deceased and Chiraguddin. Accused Chiraguddin then desired to work as junior to the deceased Saiduddin in legal practice but the deceased refused to accept him as his junior. The accused Chiraguddin took it ill and he started sitting with B. N. Raizada, Advocate. The accused Intezar Hussain was maintaining good relations with the deceased during the period of occurrence and they were on visiting terms, but inside his heart Intezar Hussain was not happy. On 23-5-1972 the deceased Saiduddin and his son PW 1 Naseem came from the Collectorate at about 5 p. m. to their house. As usual, they sat down for their meals. A telephone call from the accused Intezar was received by the deceased and conversation was also overheard by PW 1. The accused Intezar Hussain was insisting that the deceased should come to his house that evening. The deceased did not agree on account of illness of his another son Shamim. About half an hour later again Intezar Hussain called on the deceased on telephone and, in the name of Quoran, insisted that the deceased should come to his house that evening. It was about 7 p. m. on 23-5-1972 when Saiduddin, deceased, who was wearing kurta and pyjama left his house telling PW 1 Naseem that after taking betel from Sadar Bhatti he would go to the house of Intezar Hussain, accused. After few minutes thereafter, Munawwar, the son of Intezar Hussain, came and called the deceased. PW 1, Naseem, informed that the deceased had gone to his house. Abdul Saqoor, PW 2, who was sitting at the shop of Abrar, which was in front of the lane of Hamidia school, saw the deceased Saiduddin in the company of the accused Chiraguddin and Mohd. Iliyas at about 9. 30 p. m. going towards Sadar Bhatti, talking to each other. He saw Jamil accused also going behind them at the distance of 8 to 10 paces. After a few minutes he heard the cries of Saiduddin that he had been assaulted and the assailants be caught. He heard the alarm being raised by Chiraguddin that assault by knife had been made on Vakil Saheb. He then saw one person, perhaps he was Jamil accused, running away from the side of noise. This witness did not go on the spot. PW 4, Chaggo @ Chiraguddin had his tea shop at Montola near Sadar Bhatti. At about 9. 30 or 9. 45 p. m. on that day, this witnesses was sitting in front of his shop. He saw Saiduddin going with Chiraguddin and Mohd. Iliyas and taking betel from the shop of Saddiq situated at a distance of 20 paces from his shop. He further saw that after moving about 20 paces from the betel shop of Saddiq accused Chiraguddin gave a signal by rubbing his head and seeing the signal the accused Jamil, who was standing near the shop of this witness, started walking behind them at a distance of about 20 to 25 paces. After 10 minutes, he saw Chiraguddin going towards Ghatia crying that somebody had stabbed Vakil Sahib by knife. Sadiq, PW 5, had his betel shop near the culvert of Dholi Khar, near the shop of PW 4 Chhagoo. He stated that the deceased Saiduddin accused Chiraguddin and the accused Mohd. Iliyas took betels from his shop at about 9. 45 p. m. and, thereafter, they went together towards Sadar Bhatti. After about 5 minutes, this witness saw Chiraguddin accused going, crying that someone had stabbed Vakil Sahib by knife. He noticed that kurta of Chiraguddin was stained with blood PW 7, Mohd. Akram, who lived near the place of occurrence, was informed by his younger brother that somebody had stabbed Saiduddin. He came out of his house and saw that some persons were carrying Saiduddin towards his house on a rickshaw. He followed them. The jeep of Saiduddin deceased was creating trouble. In the meantime, an ambassador car belonging to PW 3 Vaidya Amaranth happened to pass from there. It was stopped and the injured was taken in that car to the Emergency Ward of the hospital. The doctor declared him brought dead. On getting the information of the incident PW 1 Naseem, along with Shamim, went to the place of occurrence and to the hospital. When he was coming out the Emergency Ward, Chiraguddin met him whose kurta was stained with blood. Chiraguddin took Naseem to the police station Kotawali where he after scribing the report in his own hand-writing handed it over, where a case was registered at 11. 15 p. m. against Hazi Muddan, Mushtaq, Badruddin, Wahabuddin and Chottey Gaewala for committing the murder of Saiduddin on 23-5-1972 at about 10 p. m. in front of R S. Soda Water Factory, Agra. In the next morning Chiranguddin, Sirajuddin, Hamid and Jamil came to the house of PW 1 Naseem. Chiraguddin gave the blood-stained kurta to him instructing that it be given to the police. This kurta was placed near the takht by Naseem. Chiraguddin went to the mother of Naseem of express sympathy. Other persons who were with Chiraguddin remained in the office, When Naseem came back, he found kurta missing. Upon this, Chiraguddin became angry and said that it would affect the case adversely. On this behaviour of Chiraguddin, Naseem became suspicious about the intention of Chiraguddin. The report lodged by Chiraguddin was sent from police station Kotwali to police station Rakab Ganj, to which circle the case belonged. On the basis of the report, Sub-Inspector Rishipal Singh, PW 15, went to the hospital at 8. 30 a. m. on 24th May, 1972, and prepared inquest report and necessary papers and sent the dead body for post-mortem examination.
(3.) ON 24-5-1972 at 11. 30 a. m. PW 16 Dr. S. C. Gupta conducted post-mortem examination and prepared the report. As per his opinion, time of death was about 12 hours. Rigor mortis was present in upper and lower limbs. He found the following ante-mortem injuries. (1) Stab wound 1" x 2/10" x cavity deep with clean cut margins on the back of the chest left side 1" away from the spine at the level of the 6th thoracic vertebra placed obliquely (medial and being higher) between the 6th and 7th ribs. On internal examination he found that corresponding to injury No. 1 there was an incised opening with clean cut margins of 1" x 2/10 on the 6th intercostal space of pleura. Blood was present in soft tissues. Left pleural cavity was full of partially clotted blood (two and a half pounds approximately ). He further found incised cut 1/2" x 1/10 " on the posterior aspect of the left lower lobe in upper part extending in the lung upward, forwards medically, upto the bronchi to the left lower lobe at the root of the lung. An incised opening 1/3" x 1/4" was found on pulmonary artery.;