Ashiq and Others vs State of U.P.

G.D Dubey, J.—The Third Additional Sessions Judge, Pilibhit has convicted Ashiq, Tahir, Aslam and Habib Appellants u/s 302 read with Section 34 IPC and sentenced them for imprisonment for life. Each of them have been further convicted u/s 323 read with Section 34 IPC and sentenced to one year''s rigorous imprisonment. Aggrieved by this order, the present appeal has been filed.

The case of the prosecution was that at about 9.00 P.M. on 25th September, 1977. Aslam Appellant met Mansoor, the nephew of the reporter Chhotey, near the crossing of Chakkiwala and told him that he will abduct the daughter of Juggi who resides as a tenant in the house of Khajan. Thereupon Mansoor said that it will not be proper for him to do so. An exchange of words had taken place in between the two. Mansoor came to his house and informed his father about the incident. At about 10.30 P.M. Ismail and Mansoor went to the house of Habib. At that place Asiq, Aslam, Habib and Tahir were present. In the talk between them, hot exchange of words took place. Ashik had a ''Ballam'', Tahir had a Kulhadi (axe), Aslam had a Danda and Habib had a knife and they opened attack on Ismail. On hearing the alarm Zaibunnisa (PW 2) and Nanhey Khan arrived there. They tried to save. It was stated in this report that Ismail had snatched the knife of Habib and inflicted injuries on Ashiq and Tahir. After the occurrence, Ismail was taken to the hospital where he was declared dead. A report of the occurrence was lodged at 11.15 P.M. the same day in the Police Station Kotwali of district Pilibhit The investigation of the case was taken up by Umesh Chand Verma (PW 7) who was posted as Sub-Inspector in the Police Station Kotwali at the time of occurrence. He had interrogated the witnesses and prepared site plan of the occurrence Abdul Rahim had handed over a Kulhadi to him which was allegedly used as a weapon in the occurrence and was left at the spot. This witness had conducted the inquest proceedings on 26-9-1977 and sent the dead body for post mortem. The charge-sheet had been submitted after completion of the investigation.

Dr. V. K. Agrawal (PW 3) had conducted the post mortem examination of the dead body at 4.15 P.M. on 26th September, 1977. He had found one incised wound 6 cm x 1 cm x brain substance. The brain matter was visible through the wound on the top of head almost equally extending on both sides across the mid line 16 cm behind and above root of nose. Both parietal bones and memberane were clean cut under the injury. The brain substance was also cut underneath the injury. There was an abrasion on the right side of abdomen and a punctured wound 2.0 cm x 1 0 cm x 4.0 cm deep on the right thigh.

Dr. Ashok Kumar Yadav (PW 6) had examined the injuries of Smt. Zaibunnisa. He had found two contusions on left fore-arm and right lung.

The injuries of the two Appellants Tahr and Ashiq were also examined by the aforesaid doctors on 25-9-1977. Tahir had one punctured wound 3 cm x 2 cm on the neck and another punctured wound 2 cm x 1.5 cm near the umblicus. It was cavity deep. One incised wound was also found. The omentum was coming out of this injury No 2. The incised wound 2 cm x 1 cm was found on the left thumb.

Ashiq had one punctured wound 3 cm x 1.5 cm x cavity deep on the right side chest. The doctor had opined that the injuries of Ashiq could be caused by knife.

The accused-Appellants pleaded not guilty to the charges. They relied on Mohammad Hanif as a defence witness He had stated that actually Ismail, Chhotey, Babu and Mansoor were the real assailants. It was also stated by this witness that Chhotey had a Kulhadi and after the assault on the Appellants this Chhotey was seen running with a Kulhadi (axe). The learned Sessions Judge after appraising of these evidences held the Appellants guilty of the offences punishable u/s 392/34 and Section 323/34 IPC.

It has been argued by the learned Counsel for the Appellants that the prosecution theory that Ismail after receiving the head injury had snatched the knife from Habib and had inflicted injuries to Ashiq and Tahir is not at all probable. Ismail had an incised wound from which the brain matter was visible. In such a situation a person cannot be able to grapple with Habib, snatched knife and inflicted injuries on Ashiq and Tahir. The occurrence had taken place infront of the house of Habib. It was urged that actually Ismail and his companions were the aggressors and had come with an intention to cause grievous hurt to the Appellants party. Therefore, the causing of injuries on the person of Ismail and Smt. Zaibunnisa was fully justified in exercise of right of private defence of their person. We have heard learned Counsel for the State also.

The statement of PW 1 Chhotey itself reveals those facts on the basis of which the Appellants had a right of private defence. In examination-in-chief this witness stated the routine story that Ismail had snatched the knife of Habib, but in paragraph 12 of his cross examination this witness admitted that before receiving Kulhadi injuries Ismail had inflicted several blows of knife on Tahir and Ashok We have seen above that the two injured accused Ashiq and Tahir had abdominal cavity deep injuries Thus, there could be every apprehension in the mind of the Appellants party that if some weapon is not wielded in exercise of private defence then grievious injury or death may be the result.

It is true that the defence version is coming with such a story in which the injury on the person of Ismail could have been caused by a blow from a person of the prosecution side itself This will not make any difference. The prosecution witnesses themselves are admitting that Ismail had inflicted blows before receiving Kulhadi. This itself makes oat a case of private defence

Smt. Zaibunnisa had stated in paragraph 8 of her cross-examination that Ismail fell down after receiving Kulhadi blow. She admitted that Ismail was empty handed when the Appellants had assaulted him. The statement of this lady does not explain the injuries on the person of Tahir and Ashiq

In State of Gujarat Vs. Bai Fatima and Another, , it has been stated that even if a plea of private defence was not taken by the accused but when the prosecution fails to explain the injuries on the person of an accused, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

Question is in which category the present case falls?"

In the instant case, we find that from the statement of the prosecution witnesses itself it transpires that Tahir and Ashiq had received injuries before any injury was caused on the person of Ismail or Smt. Zaibunnisa. It cannot be said that any injury was aimed at Smt Zaibunnisa but she had received injuries during the ''marpit'' between the parties The prosecution has, therefore, not come forward with any proper explanation about the injuries of the accused. Hence the prosecution version becomes doubtful and it also transpires that the accused had inflicted the injuries on the members of the prosecution party in exercise of the rights of self defence of the person of their side. For the above reasons, we find it difficult to sustain conviction of the Appellants.

The appeal is allowed. The judgment and order of the lower court are set aside. The Appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.