Rajasthan High Court - Jaipur
Mangu Khan And Ors. vs State Of Rajasthan on 1 July, 2003
Equivalent citations: RLW2004(1)RAJ163, 2002(3)WLC535
JUDGMENT Shiv Kumar Sharma, J.
1. The appellants five in number were placed on trial for having committed murder of Dhandhad and Isab in Sessions Case No. 29/97 before the learned Additional Sessions Judge No. 3, Alwar. Learned Additional Sessions Judge vide judgment dated December 5, 1998 convicted and sentenced the appellants as under:-
(1) Mangu Khan, (2) Sirdar Khan, (3) Subedar Khan, (4) Deen Mohd. and (5) Jamil Khan:
under Section 148 IPC To suffer Two Years Rigorous Imprisonment and fine of Rs. 1,000/-, in default to further suffer Six Months Rigorous Imprisonment.
under Section 302/149 IPC To suffer Imprisonment for life and fine of Rs. 5,000/-, in default to further suffer. Two Years Rigorous Imprisonment. under Section 323/149 IPC To suffer One year Rigorous imprisonment. All the sentences were directed to run concurrently.
2. As per prosecution story the informant Sahab Khan (PW. 3) submitted a written report (Ex. P-6) on July 11, 1997 at 9.10 AM at Police Station Sadar Alwar with the averments that around 7 AM Dhandhad and Isab (since deceased), who were respectively father and brother of the informant, were present in their field. They were assaulted by the appellants and when the informant attempted to intervene he also sustained injuries. On account of assault Dhandhad and Isab died on the spot. On the basis of the allegations averred in the FIR, the police station Sadar Alwar registered a case under Sections 147, 148, 149, 307, 447 and 302 IPC and investigation commenced. On completion of the investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge No. 3 Alwar. Charges under Sections 147, 148, 302, 302/149 and 323/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as fifteen witnesses. In their explanation under Sections 313 Cr.P.C. the appellants claimed innocence and stated that the agricultural field where the occurrence had occured had been in their possession and Mangu and Sirdar also sustained injuries. On hearing the final submissions the learned trial judge convicted and sentenced the appellants as indicated herein above.
3. Super structure of the prosecution case is founded on the testimony of Zakir Hussain (PW. 1), Rudar (PW. 2), Sahab Khan (PW. 3), Sharif Khan (PW. 4) and Riyasat Ali (PW. 5). The statements of these witnesses were corroborated by Dr. Amar Singh (PW. 12) who conducted autopsy on the dead bodies of Dhandhad and Isab. Then comes the testimony of Narpat Singh Rathore (PW. 15), who had investigated the case.
4. We find it necessary at this juncture to consider the injuries sustained by the deceased and other persons.
5. As per post mortem report (Ex. P-60) deceased Isab sustained following injuries:-
1. Incised wound: Rt. fore arm 7 x 1 cm x bone deep c- red clotted blood both fore arms bone are cut clearly tissue staining.
2. Two Abrasions: (1) 3" x 1 cm ) Right knee anteriorly (2) 2 x 1 cm)
3. Incised Wound: 12 x 2 cm x muscle deep left thigh, leterally placed vertically- red clotted blood.
4. Abrasion: 6 x 4cm (Rt.) thigh anteriorly.
5. Incised wound: (Rt.) Frontal bone skull is clear cut 7 x 2 cm x bone . deep c clotted Blood (Rt.) frontal area of skull obliquely placed.
6. Incised wound : 6 x 2cm x bone deep right fronto parietal skull, clear cut, red clotted Blood, obliquely placed.
7. Incised Wound: 10 x 4cm x bone deep (Rt.) Parieto occipital skull, clear cut, tissue staining in frontal side obliquely placed.
8. Incised wound: 7 x 4 cm x bone deep, Occipital area of skull posteriorly.
9. Incised would: Left side skull, Parieto occipital skull 6 x 2cm x bone deep clear cut obliquely placed, red clotted blood.
All injuries were antemortem in nature and cause of death was coma due to head injury to brain and skull.
6. Deceased Dhandhad vide post mortem report (Ex. P-61) received following injuries:-
1. Incised wound: Little fingre (Lt.) Hand, bone cut proximal phalynx level red clotted blood.
2. Incised wound: 8 x 6cm x muscle deep, upper l/3rd, posteriorly (Lt.) fore arm
3. Incised Wound: (Lt.) Fore arm 10 x 2 cm x muscle deep obliquely placed posteriorly.
4. Incised wound: Fore head, 8 x 2cm red clotted blood, c bone is cut mid frontal area.
5. Incised wound: 3 x 1/2 cm x muscle deep (Rt.) thumb, posteriorly, red clotted Blood.
6. Incised wound: IV finger (Rt.) Hand at proximal phalynx, posteriorly 3 x 1/2 cm x muscle deep.
7. Incised wound: V finger, (RT.) Hand at middle phalynx posteriorly, 3, l/2cm x muscle deep.
8. Incised Wound: 8 x 2cm x bone deep (Rt.) leg laterally, fracture both leg bones are cut red clotted blood upper l/3rd.
9. Incised wound: 8 x 2cm (Rt.) leg x bone deep, red clotted blood both leg bones cut.
10. Bruise: 6 x 4cm (Rt.) side skull Redish.
11. Bruise: 8 x 6cm (Lt.) side skuli.
All injuries were antemortem in nature and cause of death was coma due to head injury to skull and brain.
7. As per injury report (Ex. P-15) the informant Sahab Khan sustained following injuries:-
1. Lacerated wound: 5 x 1cm Rt. side of Parietal region.
2. Abraded Bruise: 6 x 4cm Lt. Shoulder
3. Bruise 6 x 4 cm (Rt.) wrist
4. Abrasion: 6 x 2cm Left leg.
8. The appellant Mangu vide injury report (Ex. D-6) sustained following injuries:-
1. Abrasion: 4 x 1l/2cm (Rt.) Hand.
2. Abrasion: 4 x 1/2cm (Lt.) Palrn (Lt.) Hand
3. Abrasion: 8 x 4cm (Lt.) Fore Arm.
4. Abrasion: 1 x 1cm Nose.
9. As per injury report (Ex. D-7) the appellant Sirdar received following injuries:-
1. Multiple abraded bruise: 7 x 1cm (Rt.) shoulder.
2. Lacerated wound: 3x 1 x 1/2cm (Rt.) leg.
3. Two Abrasion: 3 x 2cm (Lt.) knee.
10. Mr. S.R. Bajwa, learned Senior Counsel canvassed that learned trial Judge has wrongly appreciated the evidence led by prosecution and the same has resulted in gross failure of justice. The prosecution miserably failed to spell out the genesis as well as the proximate cause of the impugned assault. The alleged eye witnesses wilfully withheld the true account of the incident and the trial court has erred in relying upon garbled version of alleged eye witnesses. The alleged eye witnesses told deliberate lies in as much as they concealed the fact of injuries received by accused party during the occurrence. The medical evidence is indirect conflict with the occur testimony. The version set out by prosecution witnesses is highly unnatural. There is no explanation as to how the deceased trespassed into the field belonging to the accused party. The boundary wall was inside the land belonging to accused party. Consequently the accused committed no trespass in mending the boundary wall which stood in their own land. The complainant party had no reason or rhyme to object to the mending of the boundary wall by accused party. The complainant party has freely indulged in over implication. Mangu Khan and all his four sons have been embroiled, leaving behind no male member in the family. According to learned counsel two deceased, it seems, were assaulted sometimes during the night. No one was present to witness the assault. Sahab Khan has falsely imposed himself as an eye witness. The condition of the bodies is a strong proof that the murders had taken place around mid-night. There is lack of evidence to infer constituting of unlawful assembly. Learned Sessions Judge has, while on the one hand acquitted all the appellants of the independent charge of murder, should not have convicted them for the same offence with the aid of Section 149-IPC. Reliance is place on Lajo v. Sukhdev Singh and Ors.; (1) Kashi Ram and Ors. v. State of M.P.; (2) Moti Singh v. State of Maharashtra; (3) Hema Ram and Ors. v. State of Rajasthan; (4) Mahadeo Sahni and Ors. v. State of Bihar; (5) and Lakhan Mahto and Ors. v. State of Bihar (6).
11. Per contra, Mr. R.P. Meena, learned Public Prosecutor and Mr. N.A. Naqvi, learned counsel for the complainant, supported the impugned judgment and contended that the injuries sustained by appellants Mangu and Sirdar were minor in nature and if no explanation is offered by prosecution, the prosecution would not fail on that score. Reliance is placed on Ayodhya Ram v. State of Bihar (7). It is further urged that the appellants were aggressor and came armed with deadly weapon. This deliberate intention on the part of appellants clearly discernible the incident. In such circumstances the appellants can not claim the right of private defence as they came with premeditation and had done more harm than necessary. The appellants are not entitled to benefit of exception 2 of Section 300 so as to make the offence of murder as culpable homicide. Reliance is placed on Ram Vilas Yadav and Other v. State of Bihar (8), Jassa Singh and Ors. v. State of Haryana (9), Barot Ram Vishram v. The State of Gujarat (10), Kahan Singh and Ors. v. State of Haryana (II), Chittarmal v. State of Rajasthan (12), Sarwan Singh v. State of Punjab (13), Sekar alia Raja Sekharan v. State (14), represented by Inspector of Police T.N. and Rizan v. State of Chhatisgarh (15). It is further contended that a close look of impugned judgment of learned trial court demonstrates that it had convicted the appellants under section 302 read with 149 IPC. As the independent charge under Section 302 according to learned trial court was not found proved, thus the acquittal under the said section was recorded therefore it does not mean that learned trial judge intended to acquit the appellants from the charge of killing Dhandhad and Isab. It may be treated as the mistake in drafting the judgment and appellants are not entitled to any benefit out of it.
12. We have pondered over the rival submissions and scanned the material on record.
13. On scanning the judgment of learned trial court it is revealed that it has placed reliance on the testimony of Zakir Hussain (PW. I), Ruzdar (PW. 2), Sahab Khan (PW. 3), Sharif Khan (PW. 4) and Riyasat Ali (PW. 5). We have ourselves scrutinised the evidence of these witnesses. The informant Sahab Khan (PW. 3) is an injured witness. In his deposition he stated that dispute was going on for the last 10-12 days of the date of incident between Mangu and complainant party in regard to dividing wall of their fields. The accused persons after committing trespass on the field of complainant party constructed new dividing wall. On the date of incident the informant was ploughing the field by tractor at a distance of about 350 yards from the disputed wall. On seeing his father and brother going towards the wall the informant followed them. Mangu, Sardar, Deen Mohammad, Jamil and Sabu were sitting on wall. The father of informant told them that despite the fact that there was nothing in a small wall their appetite was still to be satisfied. After some altercation all the accused assaulted at his father. First blow was inflicted by Sirdar by farsi on the head of his father. Subu then inflicted Tachia-blow on the left hand of Dhandhad and Deen Mohammad inflicted lathi blow on the left foot. Jamil gave two farsi-blows on his head, while Jamil gave farsi-blow on left thigh and Subu gave Tachia-blow on his head. Sirdar also inflicted farsi-blow on the head of Isab-who also fell down. Thereafter Deen Mohammad gave lathi-blow on his person. When the informant made attempt to intervene Deen Mohammad inflicted lathi-blow on his head and Sirdar inflicted farsi-blow from the blunt side on his left shoulder. Subu gave tanchia-blow on his left foot and Deen Mohammad inflicted lathi-blow on his left shoulder. Then informant fell down Mangu gave farsi-blow from the blunt side on the right hand of informant. Sahab Khan was subjected to lengthy cross examination. On being asked as to whether he had seen any injury on the person of Mangu and Sirdar, his reply was in negative. He also admitted that when they were taking dead-bodies on the tractor they crossed Vijay Mandir Police Chowki and Police Station Shivaji Park, but the police was not informed about the incident. Even when police reached at the hospital, he did not give any detail of incident. Nothing was disclosed before instituting the FIR. The informant when confronted with his police statement Ex. D-3, deposed that certain parts of his statement at the trial were omitted by the police.
14. The statement of Sahab Khan has been corroborated by Zakir Hussain (PW. 1), Ruzdar (PW. 2), Sharif Khan (PW. 4) and Riyasat Ali (PW. 5). These witnesses gave minute narration of the incident but from their cross examination it is revealed that their statements were recorded by the police after about four days of the incident.
15. Narpat Singh Rathore (PW. 15) while conducting investigation drew recovery memos of the weapons. At the instance of accused Deen Mohammad vide memo Ex. P-54, a lathi got recovered on July 14, 1997. At the instance of Mangu Khan farsi got recovered on July 17, 1997 vide memo Ex. P-56. At the instance of Sirdar Khan farsi got recovered vide memo Ex. P-58 on July 17, 1997. On the basis of disclosure statement of Subedar @ Subu axe got recovered vide memo Ex. P-68 on July 15, 1997 and at the instance of Jamil Khan farsi got recovered vide memo Ex. P-71 on July 11,1997. In the cross examination Narpat Singh Rathore, however admitted that farsi allegedly recovered at the instance of Jamil was sealed and marked as Article 1-A. Slip bearing his signatures and date July 11, 1997 was pasted on the sealed articles but the slip did not bear the signatures of Jamil. Answering the court question Narpat Singh Rathore deposed that Jamil was arrested on July 12, 1997 and farsi got recovered after his arrest. This witness further stated that as Zakir, Ruzdar, Sharif and Riyasat Ali were not available till July 14, 1997, their statements were not recorded prior to this date. In the site plan Ex. P-8 both the dead body were shown lying in the field of Mangu.
16. We have now to consider the contentions of learned counsel for the appellants as to whether prosecution miserably failed to spell out the genesis as well as the proximate cause of impugned assault? Whether alleged eye-witnesses wilfully withheld the true account of the incident and told deliberate lies in as much as they concealed the fact of injuries received by accused-party during the occurrence? Whether the deceased trespassed into the field belonging to accused party? Whether the boundary wall was inside the land belonging to accused-party, therefore the accused party did not commit trespass in mending boundary wall and the complainant-party had no reason or rhyme to object the mending of the boundary wall by accused-party? Whether the murders of deceased had taken place around mid-night? Whether the prosecution has failed to establish that the accused constituted unlawful assembly and whether after being acquitted of independent charge of murder, the appellants could not have been convicted with the aid of Section 149 IPC?
17. As already noticed by us that appellant Mangu received four abrasions on non-vital parts of the body, whereas appellant Sirdar sustained one lacerated wound on right leg, two abrasions on left knee and multiple abraded bruise on right shoulder. The prosecution witnesses have not explained these injuries and it is on this ground that the learned Senior Advocate argued that genesis of the occurrence has been withheld by the prosecution.
18. Let us now scan the ratio propounded by the Hon'ble Apex Court in its various decisions that have been placed for our perusal. In Ayodhya Ram v. State of Bihar (supra), their Lordships of Supreme Court indicated that the prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score.
19. In Kahan Singh and Ors. v. State of Haryana (supra), Hon'ble Supreme Court observed that the injuries found on the person of the deceased go to indicate that the accused must have been the aggressors because the injuries on the person of accused were very trivial.
20. Again in Sekar alia Raja Sekharan v. State (supra), Hon'ble Supreme Court held that non explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation, is a very important circumstance. But, mere non-explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the affect of the omission on the part of the prosecution to explain the injuries.
21. In Rizan v. State of Chhatisgarh (supra, their Lordships of Supreme Court indicated the view that failure of prosecution to explain the injuries sustained by accused is not fatal where injuries sustained are minor and superficial. Similar view was expressed in Lakshmi Singh v. State of Bihar (16).
22. In Barot Ram Vishram v. The State of Gujarat (supra), it was held that the nature of injuries received by the accused on the one hand and two deceased on the other is eloquent and clearly reveals that the accused and his party were the aggressor and if that be so, it bears out without doubt, the broad substance of the prosecution story.
23. In Lajo v. Sukhdev Singh and Ors. (supra), the accused persons alleged to have attacked and inflicted gun-shot injuries. There was no other evidence except oral witnesses showing that deceased were in possession of the field. The entries produced from revenue record showing that field was in possession of accused. Non explanation of injuries caused to accused. High Court was of the view that complainant party had gone to field and attacked and thereupon accused fired shot in exercise of right of private defence. Supreme Court confirming the acquittal observed that the injuries sustained by accused Harvinder Singh do not appear to be self inflicted, but the prosecution witnesses failed to explain the injuries caused to accused. Looking to the fact produced from revenue record that the field was in possession of accused Harvinder Singh the prosecution witnesses were on inimical terms with the accused. Therefore, the judgment of High Court could not be termed to be unreasonable.
24. In Kashi Ram and Ors. v. State of M.P. (supra), their Lordships of Supreme Court indicated in para No. 22 as under:-
"22. A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity which has to some extent prejudiced the accused in their defence. The investigating officer having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have at least made an effort at investigating, the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided."
25. In Moti Singh v. State of Maharashtra, (supra), Hon'ble Supreme Court held on facts that having regard to the place of occurrence and nature and suits of the injuries sustained by one of the accused, a reasonable apprehension could be enter tained that at least a grievous hurt would be caused to the accused persons unless aggression was thwarted. Accordingly accused were entitled to benefit of right of private defence.
26. In Hema Ram and Ors. v. State of Rajasthan (supra), Hon'ble Supreme Court indicated in para No. 10 as under:-
"10. As tp the possibility of either faction launching the first attack on the other faction looms large as both sides were at loggerheads for long. There is a titling circumstance in favour of the accused, in that, the one episode described in the FIR as the preceding event is what was attributed to Hema Ram. It is alleged that he caused extensive damage to the crops raised by PW. 6 Dungar Ram in his field through grazing of the cattle unleashed by him. This is stated to be the penultimate event in the series of events which took place as between both sides. If that is so, there is a strong possibility of the deceased party looking for an opportunity to retaliate."
27. In Lakhan Mahto and Ors. v. State of Bihar (supra), several accused persons were convicted under section 302/149 IPC, out of which one of the accused was specifically charged under section 302 IPC and acquitted of the said charge. The appeal was filed by accused persons, but the state did not challenge the order of acquittal under Section 302 IPC. Hon'ble Supreme Court held that High Court could not alter the conviction under Section 302/149 IPC into one under Section 302 IPC or 326 IPC. Section 149 IPC creates a specific and distinct offence.
28. In Sarwan Singh v. State of Punjab (supra), their Lordships of Supreme Court indicated that it is absurd to suggest that an injured person would take recourse to implicate someone against whom there was enmity leaving aside the real assassin.
29. In Sekar alias Raja Sekharan v. State (supra), Hon'bie Supreme Court held that to claim the right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. In view of the categorical evidence of eye witnesses implicating the accused and the fact that when the deceased fell down after receiving injuries, the accused again inflicted another blow on his neck. The plea of self defence raised by the accused was rightly rejected by the courts below.
30. In Ram Bilas Yadav and Ors. v. State of Bihar (supra), there was irrigation dispute between complainant and accused party. The accused alleged to have objected to act of prosecution witnesses cutting ridges of field of accused to allow flow of water. The dispute proposed to be settled by reconciliation. However, accused on next day started repairing bridge and fight ensued between accused and prosecution witnesses. All the accused were armed with gandasa, bhala, spade, kudali etc. inflicted various cut injuries on one of prosecution witnesses who died. There is no evidence to indicate that the prosecution witnesses were armed with weapons. Evidence indicated that prosecution witnesses and deceased sustained serious injuries and accused sustained only some minor injuries. It was held that the accused are aggressor and came to place of incident armed with deadly weapons. Deliberate intention on part of accused clearly discernible. Under circumstances, the accused can not claim right of private defence as accused came with premeditation and had done more harm than necessary. The accused were not entitled to benefit of exception 2 of Section 300 so as to make the offence of murder as culpable homicide.
31. Bearing the principles propounded in the aforequotted judgments, in mind we now propose to consider the facts situation emerged in the instant case that may be summarised as under :-
(i) Deceased Isab received 7 incised wounds on the head and other parts of his body and 3 abrasions over right hand and right thigh.
(ii) Deceased Dhandhad received 9 incised wounds on the head and other parts of the body and two bruises on the skull.
(iii) Appellant Mangu received four abrasions on both the hands and nose. Whereas appellant Sirdar sustained 1 lacerated wound on right leg, multiple abraded bruises on right shoulder and two abrasions on left knee.
(iv) The informant Sahab Khan sustained 1 lacerated wound on head, bruises on left shoulder and right wrist and abrasion on left leg.
(v) Dispute regarding dividing wall of the fields was going on for the last 10-12 days prior to the date of incident between the appellant Mangu and deceased.
(vi) According to site-plan (Dhani) place of residence of the deceased situated towards the fields of Mangu about 300 meters away from the place of incident.
(vii) Dead bodies of Isab and Dhandhad were found lying in the field of Mangu.
(viii) The field of informant Sahab Khan situated just adjacent to the field of Mangu towards its south.
(ix) The statement of Zakir Hussain (PW. 1), Rudar (PW. 2), Sharif Khan (PW. 4) and Riyasat Ali (PW. 5) were recorded by the police on July 14, 1997 i.e. after about 3 days of the incident. As according to Narpal Singh Rathore, I.O. (PW. 15) they were not available to him.
(x) In the cross examination Narpat Singh Rathore, I.O. admitted that farsi recovered at the instance of appellant Jamil was sealed and marked as Article 1-A. A slip was pasted on the article which bore his signatures and date July 11, 1997, but it did not bear the signatures of Jamil. He further stated that Jamil was arrested on July 12, 1997 and farsi got recovered after his arrest.
(xi) There are omissions, embellishments and contradictions in the statement of Sahab Khan (PW 3).
(xii) The injuries sustained by appellants Mangu and Sirdar Khan had not been explained by prosecution.
(xiii) Despite the police station fall on the way while taking the dead bodies, the informant did not give first the information to the police.
32. It is now well settled that in order to appreciate the evidence, the court is required to bear in mind the set-up and the environment in which the crime is committed, the level of understanding of the witnesses, the overzealousness of some of the near relations to ensure that every one even, remotely connected with the crime be also convicted and everyon's different way of narration of the same facts. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff.
33. Coming to the evidence of the instant case we find that informant Sahab Khan (PW. 3) while taking the dead bodies of the deceased on a Tractor, did not inform the police about the incident. Sahab Khan in his cross examination admitted that Police Chowki Vijay Mandir and Police Station Shivaji Park fell on the way from his village to Hospital, Alwar, but he did not stop at the two police stations and proceeded straight to Hospital, Alwar. Even at Hospital when police arrived, he did not inform them about the incident. On a careful scrutiny of the testimony of Sahab Khan, we find his conduct in not reporting the matter to the police unusual and unnatural as Dhandhad and Isab were already died and there was no urgency for getting the immediate aid to the injured person Sahab Khan who had sustained simple injuries. In a similar situation their Lordships of the Supreme Court in Raghunath v. State of Haryana(16), observed in para 11 as under :-
"It is in the evidence on record that Sadar Police Station, Gurgaon and police post Badshahpur fall on the way from village Teekli to general hospital, Gurgaon. The complainant party did not stop at the two police stations and proceeded straight to the general hospital Gurgaon. It is urged that the conduct of the complainant party is unusual and this has created doubt about genesis of the prosecution story. This connection has been rejected by the learned trial court that the complainant party was busy in getting the first and immediate aid to the injured persons of the family. We are of the view that in the ordinary circumstances, it is quite imperative that the complainant party could have stopped at the police station, sought necessary help from the police station and also given the first hand information to the police. From the evidence of PW. 4 Dr. B.B. Sharma, it appears that the injuries suffered by the complainant party are simple in nature except that of Kundan Lal (deceased). In our view, therefore, there are no mitigating circumstances for not reporting to the police station at the first, hour specially when the police stations are on the way to the general hospital."
34. As already noticed the statements of witnesses Zakir Hussain (PW. 1), Rudar (PW. 2), Sharif Khan (PW. 4) and Riyasat Ali (PW. 5) were recorded after about three days of the incident and the explanation offered by the Investigating Officer Narpat Singh Rathore (PW. 15) was that the witnesses were not available to him. On a careful reading of the statements of these witnesses we find that they were very much in their village. In regard to delayed examination of the witnesses the Apex Court in Bodh Raj v. State of J & K (18), indicated that there could be no rule of universal application that if there is any delay in examination of a particular witness, the prosecution becomes suspect. If delay is explained, it is not fatal to the prosecution.
35. In order to testify as to whether the explanation offered by the Investiging Officer is plausible and acceptable we have scanned the testimony of the witnesses. Zakir Hussain (PW. 1) in his cross examination stated that he had gone with the dead bodies to the Hospital and remained there upto 9 AM and thereafter went to his house, immediately after he reached the house, the police arrived at the village and saw the place of incident but neither he requested the police to record his statement nor did he go to the police station to make such a request. After about three four days he narrated the incident to the police and till such time he did not inform about the incident to any other person. Rudar (PW. 2) deposed that he had seen the police in the Hospital but he did not inform the police about the incident. He could only see the police in the village on the fifth day of the incident. Sharif Khan (PW. 4) stated that although he had gone with the dead bodies to the Hospital but he did not see the police there. The police recorded his statement after four days of the incident. Riyasat Ali (PW. 5) stated that he had seen the police at the Hospital on the date of the incident but did not inform about the incident. He did not go to the police station to inform that he was the eye witness of the incident. For the first time he informed the police about the incident on 14th and till his statement was recorded by the police, he did not narrate the incident to any body.
36. The question of delay in examining a witness is material only if it is indicative and suggestive of some unfair practice by the Investigating Agency. Whether there are concommitent circumstances to suggest that the Investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced, inordinate delay in recording statements of material witnesses casts a cloud of suspicion on the credibility of testimony of the witnesses. In the instant case as already seen that informant Sahab Khan did not inform the police about the incident while Police Chowki Vijay Mandir and Police Station Shivaji Park fell on the way from his village to the Hospital. Even at Hospital when police arrived he did not inform the police about the incident. Thus, the possibility of over implication of the accused persons in the case cannot be ruled out. We have therefore to examine the material on record cautiously in order to separate the grain from the chaff.
37. On a careful scrutiny of testimony of the witnesses we find it consistent so far it relates to accused appellants Mangu Khan, Sirdar Khan and Subedar Khan. But we find material inconsistencies in the testimony of witnesses in regard to allegations against accused Deen Mohd. and Jamil Khan.
38. Informant Sahab Khan (PW. 3) in his examination in chief stated that Jamil took out katta (fire arm) and gave threating to him not to intervene. In the cross examination he stated that he had forgotten to incorporate in the FIR (ExP. 6) that Jamil inflicted two farsi-blows on the foot of Dhandhad continuously. He also did not state in the FIR that Jamil took out Katta and threatened him. In regard to accused Deen Mohd. informant Sahab Khan in his cross examination stated that he did not see Deen Mohd. inflicting lathi-blow on the left foot of Dhandhad. He also stated that Deen Mohd. inflicted lathi-blow on his left shoulder. Zakir Hussain (PW. 1) on the other hand stated that Deen Mohd. inflicted lathi blow on the head of Sahab Khan. Zakir Hussain also deposed that accused Mangu gave farsi-blow from the blu'nt side on the person of Sahab Khan. Rudar (PW. 2) stated that accused Sirdar inflicted farsi-blow from the blunt side on the shoulder of Sahab Khan. Sharif Khan (PW. 4) stated that Deen Mohd. gave lathi-blow on the person of Isab but as to on which part the blow was inflicted he could not see. Riyasat Ali (PW. 5) deposed that Deen Mohd. gave lathi blow on the head of Sabu (Sahab Khan) and accused Sirdar inflicted farsi-blow on his shoulder. We thus find material infirmities and embellishments in the testimony of prosecution witnesses in so far it relates to appellants Deen Mohd. and Jamil Khan. Alleged recovery of farsi at the instance of Jamil Khan is also doubtful. From the record it is established that Farsi had been recovered much before the arrest of Jamil Khan. It is also borne out from the arrest of Jamil Khan. It is also borne out from the record that deceased Isab and Dhandhad both had received as many as 16 sharp injuries but would that lead to inference that they could have been caused only by more than one or two persons. The Apex Court in Vitha! Tukaram More v. State of Maharashtra (19), observed that where the deceased received about fifteen injuries, the presence of such injuries does not lead to an inference that they could have been caused only by more than one or two persons. Involvement of more than one persons, therefore could not have been inferred merely on the number of injuries.
39. That takes us to the submissions regarding right of private defence of the accused persons. The evidence collected in the instant case indicated that deceased Dhandhad and Isab sustained serious injuries whereas the accused Mangu and Sirdar sustained only some minor injuries that too on non-vital parts of the body. It is also established that the accused came at the spot with premeditation and had done more harm than necessary. We do not find any circumstance giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to the accused persons. If Dhandhad and Isab objected the mending of boundary wall, the accused had no right to kill them brutally. In view of categorical evidence implicating the accused Mangu, Sirdar and Subedar that when the deceased Dhandhad and Isab fell down after receiving injuries, they again inflicted blows on their person, we are of the view that plea of self defence raised by the accused is devoid of merit. In so far as the argument that the dead bodies of Dhandhad and Isab were found lying on the field of accused Mangu, we find that as Dhani (Place of residence) of the deceased situated around 300 meters away towards the field of Mangu, it is not unlikely that after receiving injuries the deceased would have made attempt to run towards their residence and fell down in the field of accused Mangu. We also find that non-explanation of injuries received by accused Mangu and Sirdar, by the prosecution witnesses is not fatal as the injuries are minor in nature.
40. Coming to the argument that after being acquitted of the independent charge of murder the accused could not have been convicted with the aid of Section 149 IPC, we find that the learned trial Judge was of the view that as independent charge of causing murder could not be established, the accused were liable to be convicted with the aid of Section 149 IPC. On a close scrutiny of the judgment of learned trial court we find that it only suffers from error of drafting and the accused can not derive any advantage out of it.
41. On analysing, shifting and assessing the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate judicial scrutiny, we are of the view that the prosecution has failed to establish charges under Section 148, 302/149 and 323/149 IPC against the appellants Deen Mohd. and Jamil Khan beyond reasonable doubt and learned trial court has committed illegality in convicting and sentencing them under the said sections. Formation of common intention to commit the offence on the spot is established against the accused Mangu Khan, Sirdar Khan and Subedar Khan. Although charge under Section 34 IPC was not formed against them but their conviction under Section 302 IPC with the aid of Section 34 IPC would not cause any prejudice to them (vide Malhu Yadav v. State of Bihar (20).
42. Consequently we dispose of the instant appeal in the following terms:-
(i) Appeal of Deen Mohd. and Jamil Khan stands allowed and they stand acquitted of the charges under Section 148, 302/149 and 323/149 IPC. The appellant/Jamil Khan in Jail and he be set at liberty if not required in any other case. Deen Mohd; who is on bail need not surrender, his bail bonds stand cancelled.
(ii) Appellants Mangu Khan, Sirdar Khan and Subedar Khan are however acquitted of the charge under Section 148 IPC. But instead of Sections 302/149 and 323/149 IPC, we convict appellants Mangu Khan, Sirdar Khan and Subedar Khan under Sections 302/34 and 323/34 IPC and sentence each of them as under:-
under Section 302/34 IPC To suffer Imprisonment for Life and fine of Rs. 5,000/- in default to further suffer two years Rigorous Imprisonment. under Section 323/34 IPC To suffer one year Rigorous Imprisonment. The sentences are directed to run concurrently.
Appeal of appellants Mangu Khan, Sirdar Khan and Subedar Khan stands disposed of as indicated above.