Allahabad High Court
Akbar And Othrs vs State on 30 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1335
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 22.04.2019 Judgement Delivered on 30.05.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 279 of 1985 Appellant :- Akbar And Othrs Respondent :- State Counsel for Appellant :- J.N.Chaturvedi,Ali Hasan,Fakhruzzaman,Istiyaq Ali,Vibhav Dutt Ojha,Vishnu Dutt Ojha Counsel for Respondent :- D.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri Istiyaq Ali, learned counsel for the appellants along with Sri Sushil Jaiswal, Advocate holding brief of Sri Vishnu Dutt Ojha and Sri Jai Narayan, learned A.G.A. for the State.
2. This Criminal Appeal has been directed against the judgement and order dated 0.01.1985 passed by IV Additional Sessions Judge, Jhansi in S.T. no. 167 of 1980 whereby the accused appellants named in the table below in column No. 2 have been convicted and sentenced as mentioned in column nos. 2 to 6 of the table below and all the sentences are directed to run concurrently.
Sr. No. Name 302 I.P.C.
302 I.P.C. read with Section 149 I.P.C.
449 I.P.C.
307 I.P.C. R/w 149 I.P.C.
147 I.P.C.
148 I.P.C.
1Akbar S/o Fakira Life Imprisonment 5 years' R.I. 5 Years' R.I. 1 Year R.I. 2 Akbar S/o Natthoo Life Imprisonment 5 Years' R.I. 1 Year R.I. 3 Natthoo Life Imprisonment 5 Years' R.I. 1 Year R.I. 4 Asgar Life Imprisonment 5 Years' R.I. 1 Year R.I. 5 Fakira Life Imprisonment 5 Years' R.I. 1 Year R.I. 6 Anwar Life Imprisonment 5 Years' R.I. 1 Year R.I. 7 Babu Deen Life Imprisonment 5 Years' R.I. 1 Year R.I. 8 Munshi Life Imprisonment 5 Years R.I. 5 Years' R.I. 1 Year R.I. 9 Basheer Life Imprisonment 5 Years' R.I. 1 Year R.I. 10 Saleem Life Imprisonment 5 Years' R.I. 1 Year R.I. 11 Afsar Life Imprisonment 5 Years' R.I. 1 Year R.I.
3. Accused appellant nos. 3, 5 and 7 i.e. Nathhoo, Fakira and Babu Deen have already died and their appeals have been abated vide court's order dated 27.07.2018, hence, this appeal survives only for other co-accused appellant nos. 1, 2, 4, 6, 8, 9, 10 and 11 i.e. Akbar S/o Fakira, Akbar S/o Natthoo, Asgar, Anwar, Munshi, Basheer, Saleem and Afsar.
4. The prosecution case as disclosed from the F.I.R. is that the informant, Munshi had returned after attending call of nature at 6:00 a.m. on 21.06.1980 and his younger brother, Nawab was milking the cow at his door and P.W.1 started talking to his brother standing there only, right then, Akbar S/o Natthoo passed via Chabutra of Nawab, at this Nawab objected and stated that he should go by the passage and not via his chabutra because his cow would get unsettled, at this altercation happened between the two of them and Akbar after getting annoyed, left the place and returned soon thereafter armed with knife, with his father, Natthoo armed with country made pistol, his brother Asgar armed with Barchi, Fakira armed with 'danda', Anwar armed with 'danda', Akbar armed with knife, Babu Deen armed with buttoned knife, Munshi armed with knife, Basheer armed with knife, Saleem S/o Kalimullah armed with farsa and Afsar S/o Babu armed with 'lathi', who all were of their mohalla. Thereafter, Natthoo and Akbar told Nawab that he had got his buffaloes recovered and now he had made it difficult to pass through the passage even and hence, he would be eliminated today. Thereafter, Nawab responded that he was not instrumental in recovery of the buffaloes, hence, he should not slap false allegation against him, at this Fakira instigated all his companions saying 'maro salon ko bachne na paye'. At this, all the accused fell upon Nawab and when P.W.1 screamed loudly, hearing the same, his brother, Rahamat Ullah (deceased), deceased's wife, Bilayatan, wife of Nawab, Sugra and the persons of the vicinity i.e. Mahboob S/o Nazeer, Noora @ Noor Mohammad S/o Khaju (P.W.6), Gani S/o Vali Mohammad (P.W.4) came to their rescue. Thereafter the accused left Nawab and started assaulting Rahmat Ullah. Akbar S/o Fakira and Munshi made blows by knives upon Rahmat Ullah and Natthoo made assault by country made pistol, then Rahmat Ullah ran inside his house who was chased by Akbar and Munshi, while rest of the accused continued to assault Sugra, Bilayatan and Nawab thereafter believing Rahmat Ullah had died due to the said beating, the accused fled from there. Thereafter the informant and his companions saw that Rahma Ullah had died although Nawab was still breathing, due to which Nawab was sent to hospital. On the said written report, Exhibit Ka-1 being given at P.S. Kotwali, Jhansi, a Case Crime No. 323 of 1980 was registered at the said P.S. under Sections 147, 148, 149, 302, 307, 452, 323 and 324 I.P.C. on 21.06.1980 at 7:30 a.m. against accused, Akbar S/o Fakira (A-1), Akbar S/o Natthoo (A-2), Natthoo (A-3), Asgar (A-4), Fakira (A-5), Anwar (A-6), Babu Deen (A-7), Munshi (A-8), Basheer (A-9), Saleem (A-10), Afsar (A-11). The said report was lodged at the P.S. in presence of S.I., Chandra Bali Shukla, P.W.8 on 21.06.1980, chik F.I.R. of which was written by Head-Moharrir, Rambansh Singh and was signed by P.W.8 also which is Exhibit Ka-4 and entry of this case was made in G.D. at report no. 14 at 7:30 a.m. which was also prepared by the same Head Moharrir and is Exhibit Ka-5.
5. The investigation of this case was assigned to P.W.-8 who after having inspected the place of occurrence, prepared site-plan which is Exhibit Ka-6 and collected blood stained soil and ordinary soil from three places i.e. from outside chabutra, from inside the room which had tiled roof and also from pucca room. These were marked as material Exhibit nos. 1 to 6. Due to chabutra being pucca, its cemented floor was cut and the blood stained portion of the same was collected and its separate fard was prepared by him in his hand-writing, which is Exhibit Ka-7, 8 and 9 respectively. Fard of clothes of injured Smt. Bilayatan, Smt. Sugra and Kumari Shahida was prepared which is Exhibit Ka-10. Clothes of Bilayatan i.e. salwar. material Exhibit-7, stole of Km. Shahida, material Exhibit-8, stole and jumper of Sugra material Exhibit nos. 9 and 10, Paejama of Shahida, Exhibit Ka-11 were taken by police; under-garment of injured Nawab, material Exhibit-12, Banyan, material Exhibit-13 were taken in possession by police in Sadar hospital and its fard was prepared which is Exhibit Ka-11. The accused having absconded, proceedings under Section 82 and 83 Cr.P.C. were resorted to and thereafter, charge-sheet, Exhibit Ka-15 was submitted against the accused persons. After the post-mortem of the deceased, his clothes in sealed condition were brought by Constable Brij Lal and Raghuram from hospital and were deposited vide report no. 50 dated 21.06.1980 which was written by Constable Tejendra Mohan, which is Exhibit Ka-13. The entire case property in sealed condition, relating to this case, was deposited by Constable Angad Prasad in Sadar Malkhana on 22.07.1980 and its entry was made in G.D. by Constable Moharrir, Hari Om, which is Exhibit Ka-14. On the same day, P.W.8 had sent all materials to C.M.O. Office for chemical examination and the letter for the said purpose was written by this witness in his hand-writing, which is Exhibit Ka-15. On 8.06.1980, the accused Natthoo, Akbar, Babu Deen and Saleem had stolen four buffaloes and 11 calves and upon being caught, they were given in supurdagi of injured Nawab (P.W-2) and regarding the said supurdaginama, the entries were made in G.D. as report no. 52 by Constable, Ram Baksha which is Exhibit Ka-15. Inquest report of the deceased, Rahmat Ullah was prepared by S.I. Mahendra Singh Chaudhary on 21.06.1980 in which the details of the injuries on the dead body were also mentioned, which is Exhibit Ka-16. After the inquest, the dead body was sealed and the same was dispatched for post-mortem through Constable, Raghunath Singh and Brij Lal after preparing all the relevant papers i.e. form challan-lash, photo-lash which are Exhibits Ka-17 and 18 and chitthi-C.M.O. which is Exhibit Ka-19 which all were prepared by this witness (P.W.8).
6. S.I. Chandra Kant Shukla (P.W.8) has stated in cross-examination that during investigation, he had perused the inquest report and had read the opinion mentioned therein. He did not record statement of Chaudhary Bashir Ahmad Kuraishi although the opinion of Panchayat was recorded in his handwriting. In inquest report, the details of weapon being wielded by the accused have not been given. Further, he had stated that he had taken statement of the informant at the place of incident and not at the police station. In FIR, the order of C.O. is written on 23.6.1980 and beneath that is mentioned C.O. (City), which FIR was sent to Court but which Munshi/Head Constable had written the same, he cannot tell and it does not bear the signature of C.O. He further stated that the G.D., apart from on holidays, is sent from the police station to C.O. This occurrence is of 21.6.1980 and on that day he (PW8) was S.O. Inchaarge, Kotwali, and the office of C.O. was located in Kotwali. At the end of G.D. dated 21.6.1980 there is signature made by Vishwanath Singh Inspector and signature of C.O. with following endorsement "Rojnamcha dakhil daftar ho"
7. This witness has further stated that this endorsement is of 25.6.1980. He does not know whether Parchas of CD and GD which are sent to the office of Circle Officer, they bear the seal and date of having been received. In the said G.D., C.O. has not put his signature nor any seal is available regarding receipt of the same. Further he has stated that first Parcha was prepared by him on 21.6.1980 but cannot tell as to when it reached the office of the Circle Officer although it bears signature of C.O. dated 23.6.1980. Parcha no. 3 also bears signature of C.O. dated 24.6.1980. He denied the suggestion that all the parachas were sent to C.O. on the same day by ante-dating them. Further he has stated that in the office of Circle Officer, crime register is maintained, in which all the papers of case diary of a particular date are entered and C.O. writes number in respect of them. He does not have crime register before him, hence cannot tell as to which document reached when.
8. Further he has stated that as incharge he had taken investigation of this case and he came at 8.00 A.M. at police station and reached the place of occurrence and inspected the place of occurrence. He did not require any permission to initiate investigation. Along with Munshi (informant) Smt. Bilayant and Smt. Sugra had come to the police station. After the report, he had gone to the police station and reached there at 8.00 A.M. and remained there till 6.00 P.M. and thereafter he went to the hospital. He made search for the accused and came to the place of incident.
9. he has further stated that this witness Nawab (PW2) had stated to him that during this maar-peet on hue and cry his wife, children, Mahboob Bhai, Noora, Gani Chaudhary, Ishaq and Sayyad Husain came there, who have seen the occurrence and had counselled the accused. Copy of his correct statement is Exhibit Kha-1. Smt. Bilayatan had stated that six other persons had dissuaded the accused from assaulting the complainant side. Correct copy of her statement is Exhibit Kha-2. Further this witness has stated that it is wrong to say that he did not find human blood on the place of incident. Further, he had stated that in the site plan by no. ''4' is shown the place which is northern part of the house in eastern corner, on this place he had found human blood of the deceased, dead body was lying there and by no. ''3' is shown where blood was found which is outer Chabutra and after outer Chabutra there is first room. He cannot tell as to whose blood was there. He was told that in his house Rahmat Ullah was assaulted by Chhuri and the place shown by no.'2' was stated to be the blood of Nawab who is alive but he did not get his blood group examined. It is wrong to say that no blood was found from the house of Nawab and these injuries were false injuries.
10. This witness is formal witness who has conducted investigation of this case. In cross-examination it has been tried to prove that papers were prepared by ante-dating as no date and signature were found of the Circle Officer in respect of receipt of G.D. and case diary in his office although it was found that the FIR was sent to the court. We find that merely on the basis that the signature were missing, it cannot be concluded that FIR was ante-dated or other proceedings were ante-dated as most of these infirmities can be held to be misconduct committed by the Investigating Officer and other related police personnel, benefit of which cannot be allowed to go to the accused, if the case is found to have been proved otherwise. This witness has clearly proved that the blood was collected at the place of occurrence. He had collected blood from all the places where incident is stated to have taken place and in this case Nawab is stated to be injured while Rahmat Ullah had died and therefore he has correctly stated that whose blood was found at which place, he could not tell but at all these places human blood was found which has been proved by him. Therefore, the place of occurrence cannot be disbelieved and the statements which are made by him are in consonance with the site plan.
11. The trial court has framed charges against the accused Akbar S/o Fakira, Akbar S/o Natthoo, Natthoo, Asgar, Fakira, Anwar, Babu Deen, Munshi, Basheer, Saleem and Afsar on 18.01.1981 under Sections 147, 302 I.P.C. read with Section 149 I.P.C., section 323 I.P.C. read with Section 149 I.P.C., 307 I.P.C. read with Section 149 I.P.C. and a separate charge is framed against the accused, Akbar S/o Fakira, Akbar S/o Natthoo, Natthoo, Asgar, Babu Deen, Munshi, Basheer and Saleem, on 18.02.1982, under Section 148 I.P.C. and another separate charge has been framed by the trial court against accused Akbar S/o Fakira and Munshi under Sections 302 and 449 I.P.C. To all these charges mentioned above, the accused have pleaded not guilty and claimed to be tried.
12. In order to prove its case, prosecution has examined Munshi as P.W.1, Nawab as P.W.2, Dr. P.S. Chopra as P.W.3, Gani as P.W.4, Bilayatan as P.W.5, Noor Mohammad as P.W. 6, A.N. Nayak as P.W.7, I.O. Chandra Kant Shukla as P.W.8, R.K. Gurudev as P.W.9 Dr. S.N. Mandal as P.W.10 and Dr. S.N. Mandal has again been examined by Court as C.W.1 also, thereafter prosecution evidence was closed and statements of accused were recorded U/s 313 Cr.P.C.
13. We would refer statements of only those appellants who are surviving and not of others. All the surviving accused appellants have taken plea of false implication and have stated that the evidence which has been gathered by the prosecution is false. No witness has been examined in defence.
14. On the basis of above evidence, the trial court has convicted the accused-appellants and has sentenced them with the punishment mentioned above.
15. Learned counsel for the appellants have argued that the accused appellants have been falsely implicated on account of enmity with the complainant side. No recovery of any weapon by which the assault is stated to have been made, has been recovered. In-fact this occurrence has happened in some other manner at some other place and the accused appellants have falsely been shown to have caused the present occurrence. The trial court has misinterpreted the evidence, therefore, the judgement needs to be set-aside and accused need to be acquitted.
16. On the other hand, learned A.G.A. has argued in support of impugned judgement that the same is passed in accordance with the evidence on record. This occurrence took place because of small dispute initially as one of the accused who was passing through chabutra of Nawab where he was milking the cow had objected to his passing through chabutra stating that his cow would get unsettled and then all the accused came together armed with various weapons which have been mentioned in the F.I.R. and assaulted the deceased, the injured, Nawab and three other ladies of the house of the complainant, who all received injuries in this occurrence. There is ocular testimony of injured witnesses which cannot be disbelieved. Moreover strong motive has been suggested that the accused had stolen buffaloes, which were recovered at the instance of the deceased and because of that, the accused side was harbouring enmity towards the complainant side and this led to the present occurrence in which the deceased had died and his brother, Nawab was seriously injured, therefore, the judgement should be upheld and the appeal should be dismissed.
17. In order to appreciate the arguments of both the sides, entire evidence is to be scrutinized by us.
18. P.W.1, Munshi in support of F.I.R. version has stated in examination-in-chief that about four years ago his brother was murdered. About 14-15 days prior to this occurrence, four buffaloes and a calf were stolen by Babu Deen, Natthhoo, Fakira and son of Natthoo i.e. Akbar which were recovered and were given in supurdagi of Nawab, P.W.2 and because of this, all the four accused named above were harbouring enmity towards Nawab etc. Nawab and Rahamat Ullah are real brothers. All the accused were present in Court. He has further stated that Asgar is son of Natthoo and rest of the accused are relatives of the above named four accused. He has further stated that at about 6:00 a.m. on the date of incident, Nawab was milking his cow and it was then that son of Natthoo i.e. Akbar passed through Chabutra which was resisted by Nawab saying that he should go by proper route/passage as his cow would get rattled, at this Akbar went away from there abusing Nawab and soon thereafter within ten minutes, Akbar S/o Natthoo, Natthoo, Asgar, Fakira, Munshi, Babu Deen, Akbar S/o Fakira, Saleem and other accused whose names, he does not recollect but they were in all 11 in number and are present in Court came there and out of them, Fakira instigated others 'maro salon ko'. All these have got their buffaloes caught/recovered and pursuant to that exhortation all of them started beating Nawab. P.W.1, Smt. Bilayatan, P.W.5, Smt. Sugra and children also arrived there. As soon as Rahmat Ullah (deceased) came there, Akbar S/o Fakira assaulted him with knife as a result of which Nawab rushed inside his house, then accused Munshi also made a blow on him with knife. The accused had also beaten/assaulted P.W.1, Sugra, Bilayatan and their children. Rahamat Ullah had gone on the spot and all of them had received injuries. Taking Nawab to be dead, he was left there. Noora, Irshad, Gani, Mehboob etc. witnesses came there who saw the occurrence and then accused fled away. He took along Nawab to hospital where he got the report dictated. Whatever was dictated by him was written, thereafter he put his thumb impression thereon and the same was read out to him. He has proved Exhibit Ka-1 to be the same report which he has lodged and medical examination of all the injured persons were conducted.
19. In cross-examination, this witness has stated that they are three brothers who had separated about 24 years ago in the year 1960 but after getting married, they had to be separated because of the wives but it is wrong to say that the brothers used to fight each other. Further he has stated that accused, Fakira is maternal uncle of Natthoo, Munshi, Babu Deen are brothers-in-law of his younger brother, Natthoo. He does not know the names of other accused. He knows names of accused Fakira, his son, Akbar S/o Fakira, Saleem, Munshi, Babu Deen, Asgar, Akbar S/o Natthoo but does not know the names of others. He identified Akbar S/o Fakira in court by placing his hand upon him and also rightly identified Akbar S/o Natthoo. Further he has stated that one chabutra is outside the house of Nawab and thereafter is situated a chauk and thereafter kotha and thereafter another kotha is situated. The deceased, Rahamat Ullah had fallen in kotha which was located after the chauk. Munshi and Akbar S/o Fakira had chased Rahamat Ullah. The place where he was standing, he could not see kotha. Rahamat Ullah was assaulted by knife in chauk and when he rushed inside, he was again assaulted by knife in kotha. He did not fall where first assault was made by knife but fell down in kotha. The place where he was assaulted by knife, blood was lying and the place where his dead-body was lying, blood was also found there. The I.O. had come to inspect the place of occurrence and had found blood at both the places from where he had collected plain as well as blood stained soil. He (P.W.1) was beaten at the door of Nawab and blood was oozing out from his head also, although it had not fallen on the ground. He had suffered three injuries which were caused to him by accused but he was unable to tell as to who had caused those injuries but denied that he did not bleed from the said injury. This witness further stated that he cannot tell as to who had assaulted Sugra nor as to who had assaulted Bilayatan nor as to how many injuries were suffered by these two injured.
20. This witness has further stated that he had lodged the report on his own without any consultation. He had not held any talk with Sugra or Bilayatan prior to lodging the report. He does not know as to why Bilayatan was sent to hospital for medical examination. Further he stated that he does not remember whether he had written in the report that Akbar S/o Fakira had chased Rahamat Ullah or not. He cannot tell whether Akbar S/o Natthoo was involved in assaulting and whom he had caused injuries. He has further stated that he does not know as to what happened in the said case of theft of the buffaloes against the accused. His brother's evidence was recorded in that case. He cannot tell as to why Akbar was passing through the said chabutra. P.W.1 is a trader of buffaloes and cows and the accused side has general merchant shop. Further this witness has stated that blood was lying in front of the door of the house of Nawab which was taken in possession by the inspector. He was present at the time of occurrence. He had told nothing to his son about the murder of Rahmat Ullah nor had he talked with him at all. He had also not disclosed the names of those who had assaulted his daughter-in-law. Noor Mohammad lives in Kasai Mandi. Babu S/o Chhote and Basheer S/o Harun had seen the occurrence. He cannot tell whether I.O. had asked at the time of inquest, in respect of the cause of the death of the deceased or about the names of the assailants. He also does not recollect whether the I.O. was told at the time of panchayatnama in respect of those who had caused these injuries and what weapons they were having. He has stated it to be wrong that he had not witnessed the occurrence and was making false statement due to enmity.
21. The testimony of this witness appears to be believable only in respect of occurrence because he has candidly admitted that he does not remember the names of all the accused other than those whose names were taken by him while giving evidence. Although he did say that all the accused whom he recognized, were present in Court but their names he does not recollect now. It may be taken into consideration that the statement of this witness has been recorded four years after the occurrence, therefore, it is quite likely not to recollect the names of all the accused who were 11 in number as per the prosecution case but out of those 11 appellants, 8 have been named by him. The said statement would be treated to be natural statement. It is also very natural for him not to be able to give details of all the weapons which each accused was having and by which each accused caused injuries, to which particular injured but on the whole, he has proved that the occurrence took place outside the house of Nawab at chabutra where the deceased, Rahamat Ullah was assaulted by knife by accused Munshi and Akbar S/o Fakira, who (the deceased) ran inside the house, then he was pursued and ultimately he was assaulted inside kotha where he fell down and died and the dead body was lying in the said room from where blood was collected by the I.O.
22. P.W.2, Nawab S/o Kayoom, in support of prosecution version, has stated in examination-in-chief that his brother, Rahamat Ullah was murdered four years ago. About 12 to 13 days prior to the occurrence on 8th January, Natthoo, Babu Deen, Akbar S/o Fakira had stolen the buffaloes, regarding which the deceased, Rahamat Ullah has given information to the police as police informer, on the basis of which, the said buffaloes were recovered and were given in supurdagi of P.W.2 and he was also witness of this case because of which the accused were harbouring ill-will towards the complainant side. Further he has stated that on the date of occurrence at 6:00 a.m., he was milking his cow at chabutra in front of his house and his brother, Munshi (P.W.1) was also present there, right then, Akbar S/o Natthoo was passing through the chabutra whom he opposed saying that cow would get disturbed at this, he started abusing and went away form there in annoyance saying that he would see him, just now. After about 4 to 5 days (there appears to be a slip of pen as it should be 4 to 5 minutes), he came there with Akbar S/o Natthoo, Natthoo, Babu Deen, Munshi, Fakira, Afsar, Saleem, Basheer, Asgar, Akbar S/o Fakira, all accused present in court, armed with knives etc. Babu Deen had a knife, Munshi had a knife, Akbar had a knife, Asgar had a barchi, Natthoo was having tamancha and rest were armed with lathis. Fakira shouted that entire family should be finished, at this exhortation, accused started beating/assaulting him. In the meantime, his brother, Rahamat Ullah, his wife, Noora, his aunt Sugra and Bilayatan, his own children and children of Rahamat Ullah, Gani, Mahmood, Ishhaq Chaudhary etc. came there. As soon as Rahamat Ullah reached there, Munshi and Akbar S/o Fakira ran to assault Rahamat Ullah, after that he ran inside P.W.2's house but these people followed and assaulted him by knives. The accused persons were also assaulting his wife and Bhabhi. Rahamat Ullah died and P.W.2 also received number of injuries and treating him to be dead, the accused left him on the place. His brother had taken him to hospital where his medical examination was conducted. He has further stated that at the time of occurrence, he was wearing baniyan and payjama which got stains of blood and were got removed in hospital and from the sealed bundle which was opened before Court, he recognized these clothes as material Exhibit-I and material exhibit-II.
23. In cross-examination, this witness has stated that an incident of marpeet between him and Kalla & Shaukat had happened but no marpeet happened with his brother, Munshi. He resides separate from Rahamat Ullah (deceased). Munshi (brother of P.W.2) lives in his house which is 50-60 paces away from his house. No person by Konch had lodged any report of snatching money against him. He has no enmity with Taz Pahalwan. No case has been registered against him of assaulting any police personnel. He has never been arrested in a case of loot etc. He has been in jail in case of beating Shaukat. No case was registered against him in respect of molesting any girl nor any case was registered against him with respect to causing injuries with knife to Shahadat and Ismail under Section 307 I.P.C.
24. Referring to the above cited piece of evidence, it was argued on behalf of appellants that this witness has criminal antecedents and because of that, it is quite likely that he would have been caused injuries somewhere else in some other incident but due to enmity with the accused side, the accused have been falsely implicated.
25. This witness has further stated that the buffaloes which were stolen by Babu Deen, Natthoo, Akbar, Saleem belonged to some kumhar and were given in his supurdagi but he did not have any buffaloes because after being given in his supurdagi, they were taken away by the police at the same time. The four buffaloes and one calf were caught from their possession by police about 8 to 10 days prior to the present occurrence. During this period no accused had gone to the house of Rahamat Ullah thereafter stated that the son of Natthoo had gone and at that time P.W.2 and Rahamat Ullah were present. They had come about 8-10 days after the occurrence but thereafter stated that, they had come prior to that, only to apprise that he would see them as they had got their buffaloes recovered by police.
26. This witness has further stated that his brother had not lodged report in his presence. He had already apprised his brother, Munshi, P.W.1 prior to this occurrence that Akbar S/o Natthoo had come to give threat to him but if the same was not mentioned in the F.I.R., he could not tell its reason. His statement was recorded by I.O. and he had stated about this fact to the I.O. but if the same was not found written, he could not tell its reason.
27. Citing the above piece of evidence, it was argued by the learned A.G.A. that it is apparent that because of the information provided by Rahamat Ullah (deceased) to the police in respect of the accused having stolen four buffaloes and one calf just 8-10 days before the occurrence and in respect thereof, a case being pending in which P.W.2 is a witness, there was strong motive to avenge the said act of the complainant side.
28. This witness has further stated that at the time of occurrence P.W.2, deceased and P.W.1 were sitting at the same place and prior to this, he had stated that he and deceased were sitting. Munshi, P.W.1 had come there after hearing the noise. There was no fix time of their returning home. By the said time, they had not become free from call of nature. Rahamat Ullah had not eaten anything and had not gone for the call of nature.
29. Citing the above piece of evidence it was argued from the side of appellants that this is an improvement made in the prosecution version because as per F.I.R., P.W.2 was milking single handedly but in above statement, he has stated that all the three were together at the time of occurrence.
30. This witness has further stated that when he saw the accused very near then he realised it that they were coming armed with knives. P.W.2 was sitting at chabutra at his door. Accused made assault all of a sudden and he could not get enough time to run inside his house. He does not know whether his aunt Bilayatan had received injuries or not nor does he know as to by which weapon, she was assaulted as he had fainted, nor could he know as to who had beaten Bilayatan. When he regained conciousness, his wife told him that she was assaulted by farsa (it was pointed out by learned counsel for the appellant that it was an improvement in the prosecution version as the assault on Bilayatan was stated to have been made by knife). Further this witness has stated that he did not see the said injured getting blow of farsa. He did not tell I.O. that P.W.2 had not seen his wife being assaulted by farsa nor had he seen Bilayatan being assaulted because no such question was asked.
31. Further he has stated that Rahamat Ullah went inside his house then P.W.2 was also surrounded. He has further stated that the statement given by him that the accused had assaulted his wife and bhabhi was stated because he was told so. He was told about this two days after the occurrence when P.W.2 regained consciousness. I.O. had recorded his statement after his wife and Bhabhi told about this occurrence, his Bhabhi was pregnant because of which her internal examination was got conducted but he did not see any visible injury caused to his Bhabhi. First blow was made upon him, was on his hand by knife and at that time, he was sitting on chabutra. The blow of farsa hit upon his head while on his throat, a gupti was used in assaulting him which he resisted by his hand and, thereafter, he went inside the room. Then inside the room also, he was assaulted by Barchi. Farsa was used by Saleem while Gupti was used by Asgar and knife was used by Babu Deen. He has stated it to the I.O. that Saleem by Farsa and Asgar by Gupti had assaulted him but if the same is not mentioned in his statement, he could not tell its reason. He also stated that Babu Deen had assaulted by knife, was told to the I.O. but if the same is not written, he could not tell its reason.
32. Citing the above piece of evidence, the appellants' counsel has argued that the weapons alleged to have been used in causing injury to the injured are being changed now by this witness. The injuries which are alleged by him to have been caused by weapons are not matching with injuries found on his person and hence, his testimony belies his presence on the spot.
33. This witness has further stated that he was not an informer for getting the buffaloes recovered rather the same was done by his brother. Natthoo and Akbar both had told him and his brother that their buffaloes were got caught by informing the police which was rebutted by him. He has further stated that in his examination-in-chief he had not stated about any of the accused having been assaulted with farsa and Gupti because the same was not asked. Further he has stated that he could not tell whether his brother Munshi had seen him being assaulted by farsa and Gupti. He does not know as to what is Gupti and Barchi although he stated it to be wrong to say that he knows the difference between the two and was deliberately avoiding to tell about the same. He further stated that the son of Munshi is Munna but he does not know whether at the time of occurrence he had come there or not but he had not seen him on the spot nor had he seen Noora on the spot. The name of the father of Noora is Kol Baksha who is Sheikh, who lives in house no. 202 in Kasai Mandi. He has further stated that he had told I.O. in respect of the eye-witnesses of this occurrence who might have come to witness this occurrence because he had become unconscious thereafter. In his statement under Section 161 Cr.P.C., it is recorded that Mahboob Bhai, Noora, Rani, Chaudhari, Ishaq and Sayyaed Hussain had come who had seen the occurrence and had counselled the accused but stated that how it was written in his statement under Section 161 Cr.P.C., he can not tell its reason.
34. This witness has further stated that when the panchayatnama was filled up, he was not in conscious condition. He does not know whether the blood had spread on the place of occurrence or not although in room and the court-yard, there was blood but he cannot exactly tell about chabutra. He stated it to be wrong that he did not suffer any injury because he was not beaten and because of that he was not medically examined and that it was wrong to say that he was admitted in hospital by way of manipulation and was not at the place of occurrence and due to animosity, he was giving the evidence.
35. This witness is the injured witness who has received injuries in this occurrence. He has given detailed description as to how he was assaulted by knife when he was at chabutra in front of his house, where-after he entered the room and he has also named the persons who had assaulted with the weapons. It is true that he has seen some weapons such as Gupti and Farsa to have been used while being assaulted but these weapons were not mentioned in the F.I.R. and hence the argument that the said version was an improvement in the case of prosecution is not found to have weight and we are of the view that both these weapons are nothing but sharp edged weapons by which the injuries, which have been caused to the deceased, were possible to have been caused and further in respect of the P.W.2 having received injuries and whether they match with the medical examination of this witness, would be dealt by us at subsequent stage when we would deal with the documents which are filed in support of his treatment in the hospital, where he was got admitted pursuant to him having received these injuries. So far as the truthfulness of the deceased having been assaulted and the motive cited by this witness are concerned, to that extent, his statement is found to be believable and presence of this witness is found to be believable by us.
36. Dr. P.S. Chopra the then Deputy CMO, Jhansi has stated in examination in chief as PW3 that on 21.6.1980 he had conducted postmortem of deceased Rahmat Ullah son of Rajjan Seikh Khan at 4.00 p.m. The dead body was brought by Constable Raghunath Singh and Constable Brij Lal in sealed condition and had identified the same. He found following ante-mortem injuries upon the body of the deceased.
i) Punctured wound 2.5cm x 1 cm x chest cavity in the right side of the chest 6 cm below the right nipple, 10 cm below the mid-line. Skin muscle of the chest right side are the punctured under-neath between 7th and 8th ribs and 8 ouns of blood in the right side of the abdomen cavity.
ii) Punctured wound 3 cm x 1.4 cm x abdominal cavity deep in the right side of the back, 114 cm away from mid-line muscle, skin are punctured under-neath wound and blood was coming out from the wound.
37. Further he has stated that upon conducting internal examination, he found blood in the chest injury between right 7th and 8th ribs. Pleura was found punctured and in the right side of the chest one litre blood was found. The right side lung was also found punctured and beneath injury no. 1 about one liter blood was found on the right side of the chest. Beneath injury no. 2 peritoneum was found punctured and in the cavity of abdomen eight oz of blood was found. The cause of death was found to be shock and haemorrhage as a result of ante-mortem injuries and loss of blood. He had prepared post-mortem report in his handwriting which is Exhibit Ka-2 and opined that both the injuries were sufficient to cause his death on 21.6.1980 between 6.00-6.30 A.M.
38. In cross-examination this witness has stated that both wounds were punctured which could be caused by piercing weapon and denied the suggestion that such wound cannot be caused by knife or chhuri. Further he differentiated between the knife and chhuri by saying that the blade of knives is similar to the blade of chhuri. Further he had stated that he does not know meaning of tailing and cannot say whether these injuries had tailing or not. He had further stated that he cannot tell as to whether the weapon by which these injuries were caused had blade on either side or on one side. He stated it to be wrong that if an injury is caused by a weapon which has sharp edged blade on one side only, then punctured wound would come on one side and blunt on the other side. He further stated that there can be difference of 3-4 hours and these injuries were possible to have been caused at 3 to 4 A.M. on 21.6.1980 and denied the suggestion that his assessment about the injuries was incorrect.
39. We find that this witness has clearly proved that the deceased Rahmat Ullah had received two punctured wounds which were possible to be caused by a sharp edged weapon such as knife even if it had a sharp edged blade on one side only. It is common knowledge that knives are having sharp edged blade on one side only and therefore it is well proved that the injuries received by the deceased were caused by knife and the deceased died on account of having received punctured wounds which were caused to him by knife on 21.6.1980 between 6.00-6.30 A.M. which is the time mentioned in the FIR.
40. Gani son of Wali Mohammad has stated in examination in chief as P.W. 4 that four years ago at about 6.00-7.00 A.M. when he was at home, he heard noise, hearing which he reached the house of Nawab where quarrel was going on and he saw from a distance of about 22-25 paces from the house of Nawab that Nawab was lying in injured condition in open place and Rahmat Ullah was lying dead inside the house. He did not see the accused, who are present in court, at the place of occurrence nor did he see them assaulting Rahmat Ullah and others. This witness was declared hostile and thereafter he was cross-examined by the prosecution side and then he stated that when he was read out the statement recorded under section 161 Cr.P.C., he denied to have given any such statement and also denied the suggestion that because of having colluded with the accused and because of having been intimidated by them, he had given false statement in Court. On being cross-examined by the prosecution side, he has stated that the daughter of witness Nawab (PW2) was married to his son.
41. It is apparent from the statement of this witness that though he is not an eye witness of the occurrence as is evident from examination in chief but he has not supported prosecution case in cross-examination but this much he has been stated by him that when he reached the place of occurrence at about 6.00-7.00 A.M. in the morning from his home after hearing noise at the house of Nawab, he had seen Nawab lying in injured condition near his house just at a distance of 20-25 paces away while in side the house the dead body of Rahmat Ullah was found. Therefore, his statement may be taken to have proved that soon after the occurrence, he had seen injured Nawab and dead body of Rahmat Ullah at the place of occurrence although he is relative of Nawab (PW2).
42. Smt. Bilayatan wife of Rahmat Ullah has stated in examination in chief as PW5 that about four years and three to four months ago in the morning at about 6.00-6.30 a.m. she was in side her house along with her elder son and five other children. She heard noise out side of the house, hearing which, her husband went out and she followed him along with his elder son Sagir. After coming out from her house, she saw that Asgar armed with Barkati, Natthoo armed with country made pistol, Salim armed with Farsa, Babu Din armed with chhuri, Munshi armed with knife, Akbar son of Fakira armed with knife, Akbar son of Natthoo armed with knife, Fakira aremed with danda, Bashir, Afsar and Anwar armed with Lathis and all of them, who are present in court, had assaulted her ''Dewar' Nawab. Rahmat Ullah tried to prevent them from assaulting him then Munshi assaulted Rahmat Ullah with knife in his chest. When her husband after getting injury, rushed inside the house, Akbar and Munshi chased him accompanied with Fakira and all these three had killed Rahmat Ullah inside the house. Fakira had shouted that he should not be left alive and be killed. Due to injuries Rahmat Ullah died and the accused fled away. Nawab was still breathing and Sugra taking him along, ran from there, on this, Babu Din assaulted Sugra by knife at her head but she did not get hurt. She was thrown on the ground. Thereafter, Nawab was taken to hospital. She was also medically examined. She had bled in the maar-peet. Rahmat Ullah and Nawab were beaten inside the house and on chabutra by Danda.
43. In cross-examination, this witness has stated that the accused used to come to her house due to being of the same Mohalla. Prior to this occurrence, she did not have any enmity with the accused. When the quarrel started, she was in her house and when she came out, she saw that all the accused were beating Nawab, who was made four blows which were made by Salim, Asgar, Akbar son of Natthoo and Babu Din. Nawab fell down there only but after his falling down, no one had assaulted him because the accused thought that he had died. When her husband came out from home, he was empty handed. At the time of occurrence of maar-peet, no person came forward of Mohalla or the vicinity. At the time of occurrence, PW5, her son, her husband, Shahida, Sagir and Sugra were there and none else. All these had dissuaded the accused from assaulting. Further this witness has stated that she does not remember whether her statement was recorded by Investigating Officer or not. She had given statement to Investigating Officer that on their screaming people of the vicinity had come who tried to stop the accused from beating but thereafter she said that she had not given any statement and if the same was written, she could not tell its reason. Further, she had stated that she along with all the home-folks had tried to rescue Nawab. She and other family members had tried to drag the accused. Nawab was dragged by the sister of P.W. 5, Sugra.
44. Further, she has stated that Sagir aged about 12-13 years had sustained injuries. Shahid son of Nawab aged about 13 years did not receive any injury. He had told the Investigating Officer that Shahid was present on the spot but cannot tell as to why the same was not written. She (PW5) did not have any visible injury as she was not beaten by any one rather was pushed. The police personnel had got her internal examination done. When she had come out, the accused had pushed her by which she had fallen and had become unconscious. She was admitted in hospital in conscious condition. She, her husband and children had gone from their house to the house of Nawab; her house and house of Nawab are adjoining. She and her husband did not ask the accused as to why they were beating Nawab. Thereafter, she stated that her husband had told the accused as to why they were assaulting Nawab. Her husband did not try to cause any injury to the accused nor did he abuse them. She had witnessed the occurrence for 10 minutes and thereafter accused fled from there. During this period, she had seen as to which accused was armed with which weapon. Outside the house of Nawab there is Chabutra which has one door. There is no window towards outside. As one would enter from the door, there is Tapra and thereafter are situated two courtyards and two kothas. The main door is about 2 ½ ft. wide and about 5.00 ft. height. After entering of Rahmat Ullah in the house of Nawab, behind him accused Munshi, Anwar and Fakira also followed. Rest of the accused kept standing outside the door blocking it and would not allow anyone to enter the house. She also followed the accused in side the house. She denied the suggestion that she was not present at the spot.
45. Further, she has stated that after the occurrence and prior to lodging the report she had not talked to Munshi (PW1) nor did he ask anything from her as he had written report on his own. She stated it to be wrong that her condition was not such that she could move about and was lying on the bed.
46. Further, she has stated that she had told the Investigating Officer the name of the accused who had pushed her by which she had fallen. By falling down, her condition had deteriorated but the same was not written in her statement, she could not tell its reason. She had stated to Investigating Officer that she was not beaten. She had become very much scared and because of that her condition had deteriorated. The Investigating Officer had taken her statement three days after the occurrence. She denied the suggestion that the occurrence took place in the mid night and not at 6.00 A.M. At the time of occurrence, her husband has woken up in the morning and had straight-way gone out without having eaten anything and on the spot he died. She denied the suggestion that Nawab did not receive any injury nor was beaten and further denied the suggestion that no such occurrence took place and that her husband was killed in quarrel which happened among family members and was not done to death by any accused. She also denied the suggestion that her husband had enmity with many other persons.
47. The testimony of this witness, who is wife of the deceased, seems believable although there is little consistency with respect to her being beaten by the accused. At one place, she has stated that she did not receive any manifest injury although she was pushed by the accused by which she had fallen down and then she received injury. She has also clearly stated that the accused were assaulting Nawab who was made four blows by Salim, Asgar, Akbar son of Natthoo and Babu Din, Nawab had fallen and thereafter he was not assaulted because he had died but it appears that by that she meant that Nawab was not beaten thereafter because accused thought that he had died. Her presence on the spot cannot be disbelieved and she had clearly stated that Rahmat Ullah, her husband when intervened at the time when accused were assaulting Nawab, he was assaulted by accused by which he received injury and after getting hit, he ran inside the house to defend himself where-after accused Munshi, Akbar and Fakira followed him inside the house and killed him there and this has been seen by this witness because she had stated to have followed them inside the house.
48. Noor Mohammad has stated in examination in chief as PW6 that about four years ago in the morning at about 6.00 A.M. hearing noise, he reached at the door of Nawab along with Mahboob and Ishtiyaq followed by Gani and 2-3 other persons and saw that Nawab, his wife and Munshi were being assaulted by Asgar, Munshi, Babu Din, Natthoo, Akbar, son of Natthoo, Fakira, Akbar son of Fakira, Afsar, Bashir and Slaim. Natthoo was having country made pistol, Asgar armed with Barkati, Babu Din armed with knife, Munshi armed with knife, Anwar armed with Chhuri, Salim armed with Farsa and others armed with Lathis and by these weapons they were assaulting Nawab at his Chabutra whom he tried to stop by raising voice. Rahmat Ullah (deceased) was also beaten by accused. Nawab received injuries and Rahmat Ullah died in the incident, although Nawab was still breathing. Rahmat Ullah was beaten outside and thereafter the accused followed inside the house and had beaten him and behind Rahmat Ullah accused Munshi and Akbar ran and both of them made blows upon him by knife by which he fell down and died. Nawab was sent to hospital.
49. In cross-examination, this witness has stated that his house is situated about 300 paces away from the house of Nawab and in between, there are many people residing. The house of Nawab was surrounded by houses of other residents. When he heard noise, at that time he was standing about 10-20 paces away from the house of Nawab. He was alone there at that time. At the said place cattle used to come. He had gone for purchasing leather but no market of leather is there nor could he provide any receipt of purchasing any leather. Creditors start coming in the morning about 5.30-6.00 A.M. and by that time purchaser also reach there. When he had reached there, there was no shop keeper or purchaser. On the said day he had gone to see quarrel therefore he could not tell as to who have come in the said market for purchase of leather. He stayed for long time at the place of incident and thereafter went to the hospital with Nawab and came home thereafter, did not go to Kotwali. He had come back to the house of Nawab. At that time, his wife was weeping. His wife was not taken anywhere by him nor was she taken in front of him. He had seen injury at the head of wife of Rahmat Ullah. How the same was received, he cannot tell. He found that Bilayatan was also weeping. He had not seen any injury caused to her. He did not have any talk with Bilayatan and Sugra nor did he ask them as to what occurrence had happened. He did not ask Sugra as to who had assaulted her because he had seen the occurrence himself. Rahmat Ullah is son of his real ''Bua'. At the time of occurrence he did not try to catch hold of accused because they were armed with weapons. He did not try to drag Rahmat Ullah and Nawab. Gani is the real Samdhi of Nawab who had come after him, even he did not tell anything about the occurrence. He did not tell Gani that his Samdhi was being assaulted so he should go and defend him. He did not intervene in the maar-peet to defend the deceased and the victim. At the time of occurrence, no person of the vicinity had come rather had come subsequently but their names he does not recollect. Mahboob and his brother, of the said Mohalla and Chaudhary Ishtiyaq had seen the occurrence.
50. Further this witness has stated that he did not go in side the house of Nawab initially but when the accused fled away thereafter he went in side the house. The occurrence which took place inside the house was seen by him from Chabutra out side as the door was open. Rest of the accused were on Chabutra while two accused had gone inside the house. The accused were not guarding the door rather were standing outside. He does not know whether any accused had blocked entry of any person from going inside. When Rahmat Ullah had gone inside the house, accused had also gone inside the house behind him. A question was asked whether two accused who had chased Rahmat Ullah had gone inside the house of Nawab, after entering of Bilayatan inside the house or prior to that. To this, it was replied that they had gone inside the house together. He denied the suggestion that he had not seen the occurrence and was making false statement deliberately.
51. Further this witness has stated that Natthoo had made fire by country made pistol. First of all, fire was made by pistol and thereafter maar-peet had begun. Since fire was made by country made pistol, he had reached the place of incident. Fire was made from a distance of about 10-20 paces but he cannot tell as to whether fire was made from which side, nor could he tell as to who was intended to be killed by that. Further he stated that fire was made with a view to intimidating. He does not know as to whether fire hit or not. Spot inspection was made in front of him. Investigating Officer did not ask him as to from where the fire was made, therefore, he did not tell him. No pallet was found during inspection of scene of occurrence. Two fires were made. No effort was made by Ishtiyaq and Mahboob to defend anyone nor does he recollect whether they had gone to the police station or not.
52. In inquest of the deceased, he and son of Munshi namely, Mulla were witness. He does not recollect as to whether the inquest report was prepared nor does he recollect whether his signatures were taken. Some signatures were made by him on some papers of Kotwali but he does not recollect their details. Investigating Officer had taken opinion on panchayat at the time of inquest. He had put his signature at the inquest report but he could not tell as to why the police had not entered the weapons therein which were used by the accused in assaulting. He denied the suggestion that he had not seen the occurrence and was giving false statement because of being relative.
53. This witness is a neighbour of the injured Nawab and deceased Rahmat Ullah, who has stated to have reached the place of incident after hearing noise of fire which was made by accused Natthoo.
54. It was argued from the side of the appellant that no injury was caused to anyone by fire which shows that the version of prosecution was false because the accused who was having country made pistol was stated to have fired by that. It would be very much likely for the complainant side to receive injury of fire arm had such a fire been made. The injury memo of the deceased and other injured person does not show any fire arm injury which belies the prosecution version as well as the motive to kill the deceased and the injured Nawab. If intention was to kill either of the two, certainly the fire would have been made from close range and they could have been killed but nothing of the sort has happened, which belies the prosecution story. The occurrence has happened in some other manner in the night and due to animosity between the two sides, the accused have been implicated.
55. We are of the view that it cannot be a ground to disbelieve the presence of witness that fire arm used by Natthoo did not hit anyone of the complainant side because this witness (PW6) has also stated that it was morning time at around 6.00 A.M. when after hearing noises, he had reached the place of incident from the place where he had gone to purchase some leather. He had seen the accused who have been named above assaulting Nawab outside at Chabutra and he had tried to stop them. He has also deposed that Rahmat Ullah was also beaten by the accused who was beaten outside the house and when he ran inside the house, he was followed by the accused Munshi and Akbar and both of them had made assault him by knife by which he fell down and died. This was seen by him from the out side the house as the door was open and other accused were standing out side at Chabutra. Therefore, he is corroborating the statement of other eye witnesses in respect of assault made by the accused upon the complainant side.
56. Dr. A.N. Nayak has stated in examination in chief as PW7 that on 21.6.1980 while he was posted at Civil Hospital Jhansi, he conducted medical examination of Sugra wife of Nawab, aged about 30 years, at 10.30 A.M., who was brought by Constable Genda Lal P.S. Kotwali and found following injury on her person.
i) 5 cm. x 1 cm x .5 cm deep transverse incised wound on back of skull parietal region, 10 cm. above left ear and 12 cm. above right ear, bleeding freshly, edges clean cut at both corners, tailing present. Contusion present on both sides of wound 2 cm. on each side. Advised X-Ray of skull. The injury was caused by sharp instrument, duration was fresh. He has proved the injury report which is Exhibit Ka-3.
57. He has stated in cross-examination that he had not mentioned about the colour of injury nor about the clotting of the blood but had written that fresh blood was coming out from the injury. When she was examined, there was bleeding from injury but after having seen the said injury report, he cannot tell whether blood was coming out with full flow or only was oozing out little. He has though stated that the spot in the head where she has received injury could be caused by falling or by some blunt weapon but in the said injury tailing was found. He has further opined that the injury if received by falling or caused by blunt object, would appear like an incised wound but it is not necessary that margins would be clean cut. Further, he was questioned by defence that was there is any criteria to assess the injury as to whether it was caused by falling or by blunt object when margins were found clean or lacerated. In this regard, he responded that he had mentioned only about size and nature of injury in the Medico Legal Injury Report. When he was enquired about as to what did tailing mean, he responded that when an injury is caused by sharp edged weapon, its one end gets contracted which is called tailing. Again he was questioned whether tailing would mean, when an injury is caused by any weapon whether sharp or blunt and when the same hits and is dragged, where the said injury ends, that would be called tailing, to which he responded in negative. Further, he stated that any end of the wound would be addressed by him as tailing. He further denied that he had made wrong assessment of age of wound and further stated that if any person falls on a particular angle on sharp edged weapon by force, such kind of injury could come.
58. From the statement of this witness it is apparent that the injured Sugra who was stated to have been beaten by accused side, who had come armed with above-mentioned weapon, which included knives in the hands of various accused, could have been caused the injury, which has been found on the person of the injured as the same has been proved by the doctor to be an incised wound.
59. Dr. R.K. Gurdev has stated in examination in chief as PW9 that when he was posted as Medical Officer on 21.6.1980 in District Hospital Jhansi, Nawab son of Rajjan was medically examined by him at 7.10 A.M. and his injuries were noted down in accidental register, which register was not in front of him. Information with respect to admitting him was given to complainant side. In bed head ticket of the injured, details of his treatment are mentioned and it is also recorded that the other injuries are mentioned in the injury register. The main injury was indicated in bed head ticket, which was incised wound on chest on the right side and near clavicle above sternum which was in his handwriting and he had advised X-Ray of head and right hand and the report, Exhibit Ka-20 has been proved by him. On the said Exhibit following injuries are mentioned.
i) Incised wound medial II left clavicular joint near left neck and bleeding present.
ii) Scalp wound.
iii) Injuries 2 and 3 tightly bandaged.
60. In cross-examination this witness has stated that he cannot tell as to why he had advised X-Ray. He did not mention dimension of incised wound. It is wrong to say that he had mentioned in bed head ticket that there was no injury and that because of the injured cringingly pleading, he had advised for X-Ray.
61. From the statement of this witness, this much is clear that incised wound was mentioned by him to have been suffered by the injured Nawab son of Rajjan (PW2) which is mentioned above and about rest of the injuries, he had mentioned that the same were entered in accidental register, which was not in front of him and because of which, he cannot give details thereof. From the cross-examination, it cannot be disbelieved that the said injury was received by the said injured witness of this case.
62. Dr. S.N. Mandal has stated in examination in chief as PW10 that on 21.6.1980 he was posted as Medical Officer in District Hospital, Jhansi and on that date at 5.15 p.m. he examined injured Nawab son of Rajjan (PW2), who was admitted, on account of having received injury, on 21.6.1980 at 7.10 A.M., whom he had gone to see in the ward. After having seen the patient, he had recorded the condition of the patient in the bed head ticket and the treatment recommended was also mentioned therein. He was vomiting and blood was coming from the wounds. His condition was very low. He was injected two bottles of glucose and was also given injection to stop bleeding. Again he was examined at 5.55 P.M. but no improvement was found in his condition as blood was continuously coming despite glucose being infused. Because of serious condition of the patient, he was advised to go to M.B.L. Medical College but his relative did not agree saying that the condition of the injured was very bad, and then he gave following treatment to the patient. One bottle of glucose to be injected and thereafter one bottle of blood to be infused. The bed head ticket was prepared by him in his own handwriting which Exhibit Ka-21.
63. In cross-examination, this witness has stated that in other kind of ailment also glucose and blood is infused and not only in cases where excessive loss of blood takes place due to injury. He has further stated that on 21.6.1980, with him Dr. B.K. Tandon was also posted as surgeon. The bed head ticket of the patient was filled up by that doctor. He is conversant with his handwriting. There are few entries made in bed head ticket on 21.6.1980 at 7.40 A.M. and details of them are mentioned in the register which are as follows:-
i) Incised wound medial II left sternum clavicular joint on skin and adjoining point of left neck + bleeding.
ii) Scalp wound. iii) Left end wound. iv) Tightly bandaged.
64. This witness has further stated that the Dr. Tandon had advised infusion of glucose as well as blood and also urgent X-Ray of chest and head and left hand. Dr. Tandon had seen this patient on 21.6.1980 at 6.00 A.M. and found his condition very low as he was vomiting and from the injury in his neck, there was bleeding and was advised blood infusion. After staying in hospital few days, on 28.6.1980 the patient was discharged from hospital. The bed head ticket which was filled by Dr. Tandon was Exhibit Ka-22. He further stated that Exhibit Ka-22 is rough note of Dr. Tandon in which details of injuries are not mentioned. He does not have personal knowledge about the injuries. In none of the injuries, dimension has been mentioned nor location of the wound is mentioned. He cannot tell as to what was the condition of the injuries, which were bandaged.
65. From the statement of this witness cited above, it is proved that he being a doctor who was conversant with the writing of his colleague Dr. B.K. Tandon, had proved the bed head ticket which was prepared by Dr. Tandon in which the condition of the patient was found to be very low. He had remained admitted for about 7 days and three injuries have been noted which are stated above, which are on vital part. It is correct that details of the injuries have not been mentioned which are stated to have been mentioned in the accidental register but the injuries which are mentioned in the Exhibit Ka-22, are also on vital part of the injured witness Nawab, same being an incised wound, it could be believed that the same was caused by sharp edged weapon such as knives, which were wielded by the accused side.
66. Dr. S.N. Mandal had again been summoned by the Court as CW1 although he could not have been further examined by the Court as PW10. He had already been examined earlier but it appears that for reason best known to the trial court, he had been summoned as C.W.1 again. This witness has stated in examination in chief that on 21.6.1980 while posted as Medical Officer in Civil Hospital in Jhansi at 2.20 PM. He had examined Munshi (PW1) son of Rajjan and found following injuries on his person.
i) Contused swelling 3 cm x 2 cm on the top of the head, slightly to the right of mid line and 12 cm above right ear.
ii) Contused swelling 3cm x 2 cm on the back of the right hand between thumb and index finger.
Iii) Traumatic swelling 10 cm x 5 cm on the right side of the back of right leg in the middle part.
67. All these injuries were simple in nature and caused by some blunt object on 21.6.1980 at about 6.00 A.M. He proved the injury memo as Exhibit C-1.
68. It is apparent that as per FIR the prosecution case is that at 6.00 A.M. the younger brother of PW1 Nawab was milking cow in front of door of his house at Chabutra then the accused Akbar son of Natthoo passed through that Chabutra at which Nawab objected saying that his cow would get unsettled and on this an altercation took place between them, where-after Akbar son of Natthoo getting annoyed went from there and soon thereafter returned armed with Chhuri, Akbar's father Natthoo armed with country made pistol and Akbar's brother, Asgar armed with Barchhi, Fakira armed with Danda, Anwar armed with Danda, Akbar son of Fakira armed with Chhuri, Babu Din armed with knife, Munshi armed with knife, Bashir armed with Chhuri, Salim armed with Farsa, Afsar armed with Lathi and Natthoo and Akbar, told Nawab that he had got their buffaloes recovered and now they were stopping from using the passage, therefore, he would be killed and on this Nawab rebutted that he did not get the buffaloes recovered and false allegation should not be made against him. Thereafter, Fakira instigated all the accused persons "Maro Sale Ko Bach Key Jane Na Pae" and on this, all the accused together started assaulting Nawab and on his screaming, his brother Rahmat Ullah (deceased), Rahmat Ullah's wife Bilayatan (P.W.5), Nawab's wife Sugra and other witnesses namely Mahboob, came there and thereafter the accused leaving Nawab started beating Rahmat Ullah. Akbar son of Fakira and Munshi assaulted Rahmat Ullah by Chhuri and knife. Natthoo made fire by his country made pistol, thereafter Rahmat Ullah entered the house of Nawab wherein he was chased by Akbar and Munshi and rest of the accused assaulted Sugra, Bilayatan and Nawab and when they felt that Nawab and Rahmat Ullah were dead, they had fled from there. This version of the prosecution has been supported by PW1, Munshi, who is injured witness and brother of the deceased, P.W. 2, Nawab injured witness, who is also brother of the deceased, Bilayatan, who is wife of the deceased who has been examined as PW5. Gani who is neighbour of the deceased has been examined as PW4, who has stated that he had reached the place of occurrence but accused were not seen by him although he had seen the dead body of the deceased and injured Nawab lying in serious condition, therefore, his testimony was corroborating that soon after the incident, the injured was found lying and the deceased was found dead and soon before fleeing of the accused from the place of occurrence. His testimony would fall in the category of circumstantial evidence although he has turned hostile as according to prosecution, though he was an eye witness of the occurrence but as per his version he has not seen the injured and deceased being assaulted by the accused. P.W.6, Noor Mohammad is also a neighbour of the deceased who has also supported the prosecution case as has been narrated above. The injuries which are found to have been sustained by PW1, PW2, PW5 and Sugra wife of Nawab, who have been examined in the present case from the side of prosecution and the injuries caused to the deceased Rahmat Ullah, all are found to have been caused by the weapons, which accused were wielding in their hands. Much emphasis was laid by the learned counsel for the appellant that there were many discrepancies in the statements of the eye witnesses in respect of which weapon was being wielded by which accused, but it may be taken to be natural contradiction because when a large number of accused are stated to have come and formed unlawful assembly with common object of murdering the deceased and causing injuries to others with intention to kill and they assaulted in prosecution of their common object complainant side, in which various persons of the complainant side received injuries, it would be very difficult to reveal the exact weapon, which such accused were carrying by which they were assaulting the deceased and the injured person. But simply because such discrepancies were found, it cannot be held to be a ground to disbelieve the testimonies of these witnesses. Supreme Court has held in AIR 2019 SC 1719 Mahendran v. State of T.N. as under:
"51. In Gangadhar Behera's case (AIR 2002 SC 3633), while considering the Section 141 of IPC, it was held that common object is not common intention as the mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. Common object does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view if the five or more act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. The Court while considering the plea that definite roles ascribed to the accused and therefore Section 149 is not applicable, was not accepted. It is held as under:
'25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable.'
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69. Therefore, in view of the above proposition of law, we have to see whether the accused were present on the spot or not and whether they had come prepared to eliminate the deceased and to cause serious injuries to the complainant side with a view to killing them, in which injuries are sustained by the deceased and several injured and if the exact weapons are not disclosed by the witnesses which were being carried by the accused side, whether the same would be taken to be a demerit of the prosecution case or would such kind of variation, be taken to be natural variation in their testimonies. We find that the weapons which are stated to have been carried by the accused side, the injuries which have been found on the person of the deceased and other injured were possible to have been caused by these weapons, as has been proved by the doctors who have been examined and their statements have been mentioned above. We find that the evidence on record proves that all the accused had come armed with the said weapons stated above with common object to cause death of the deceased and casing injuries to other injured with a view to eliminating him and merely non-disclosure by them of weapon in their respective hands or which accused caused injury to which injured or deceased, would be of no significance.
70. The statement of Bilaytan has been dealt with by us and we find that she was present, though she did not sustain any apparent injury as she had stated to have been pushed by the accused, by which she had fallen but the narration made by her of the entire occurrence is found to be credible. The place of occurrence is also proved, which is found, in the site plan, to be three places. Initially occurrence happened outside at Chabutra where P.W. 2 was milking the cow and when the assault was made by the accused side and the deceased Rahmat Ullah tried to intervene, the accused side, leaving Nawab, started assaulting Rahmat Ullah who ran inside the house of Nawasb. He was found dead inside the room which, place is shown in the site plan by no. ''4'. There are three places shown where maar-peet has taken place which are shown by nos. ''2', ''3' and ''4'. No. ''2' is the place, which is Chabutra of the house of Nawab where Nawab was found lying in injured condition and no. ''3' is the place where Rahmat Ullah was assaulted by knife and no. ''4' is place where Rahmat Ullah was finally done to death. From all the places, the Investigating Officer had taken bloodstained and ordinary soil (pieces of cement) and human blood was found at all these places, therefore, we find in the light of the testimony of the injured witness and other eye witnesses named above, the said place of occurrence is proved by the prosecution.
71. Now it would be appropriate to discuss about the motive of giving effect to this occurrence by the accused. It is stated that the immediate cause was that the accused Akbar son of Fakira, when passed through Chabutra, he was opposed by Nawab saying that his cow which was being milked, would get disturbed and he was told to go by proper passage and on this, heated argument ensued and the incident took place between the two sides and soon thereafter all the accused came together armed with deadly weapons and formed unlawful assembly, common object of which, was to eliminate the complainant Nawab as well as his brother Rahmat Ullah and in prosecution of that common object, all of them started assaulting Nawab in which he received serious injuries for which he had remained hospitalized for seven days. Rahmat Ullah died and other members of the family of the complainant have received injuries. It is also mentioned that earlier to this occurrence, several buffaloes were stolen by accused side regarding which information was passed on by the complaint side to the police and pursuant to that these buffaloes were recovered from the accused and in respect of this occurrence, a case was also registered which was pending between two sides, in which Nawab was also witness, therefore, there could be a very serious motive for the accused to give effect to this occurrence. Due to this enmity, the immediate cause of which turned out to be objection of the accused Akbar son of Fakira passing through Chabutra which was opposed by the complainant side. Therefore, we find that motive is well proved, possibility could not be ruled out that the accused due to this enmity, would have given effect to this occurrence.
72. We find that there is no infirmity in the judgment and order of the trial court and with the assistance of section 149 Cr.P.C., all the accused, who were present on the scene of occurrence, have been held liable for giving effect to this occurrence, which is rightly done.
73. Accused Natthoo, Fakira and Babu Din have already expired and their appeals have been abated vide Court's order dated 27.7.2018. Rest of the accused namely Akbar son of Fakira, Akbar son of Natthoo, Asgar, Anwar, Munshi, Basheer, Saleem and Afsar are found to be rightly held guilty under the aforementioned sections by the trial court. Since they are on bail, their bail bonds and personal bonds are discharged. They shall be taken into custody to serve out the remaining sentence.
74. Let a copy of this judgement be transmitted to the trial court along with lower court record for its compliance.
75. The appeal stands dismissed.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.) Order Date:- 30.05.2019 A. Mandhani/A.U.