Lal Mohammad and Others (in Jail) vs State

Seven persons, namely, Lal Mohammad, Samar Bahadur Singh, Ibrahim alias Matau, Rahmat Ullah, Rasool, Muneer and Murtaza were tried by the Special/Additional Sessions Judge, Raibareilly in Sessions Trial No. 407 of 1983 for the offence punishable u/s 302/149, I.P.C. In addition-Lal Mohammad, Samar Bahadur Singh, Rahmat Ullah, Rasool, Muneer and Murtaza were tried for the offence punishable u/s 147, I.P.C. ; Ibrahim alias Matau for that punishable u/s 148, I.P.C. ; Lal Mohammad for that punishable u/s 323, I.P.C., and remaining six for that punishable u/s 323/149, I.P.C.

The learned trial Judge vide judgment and order dated 10.9.1984 convicted and sentenced all seven of them to imprisonment for life for the offence punishable u/s 302/149, I.P.C. In addition-he convicted and sentenced Ibrahim alias Matau to two years'' R.I. for the offence punishable u/s 148, I.P.C. the remaining six to one year R.I. for that punishable u/s 147, I.P.C. and Lal Mohammad to six months'' R.I. for that punishable u/s 323, I.P.C.

The sentences of the said persons were directed to run concurrently.

Aggrieved by their convictions and sentences, Appellants Lal Mohammad, Samar Bahadur Singh and Ibrahim alias Matau preferred Criminal Appeal No. 725 of 1984 in this Court ; Appellant Rahmat Ullah Criminal Appeal No. 726 of 1984 ; and Appellants Rasool, Muneer and Murtaza Criminal Appeal No. 727 of 1984.

Since these three appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Mohammad Taha (P.W. 1) is the brother of the deceased Dilsher. At the time of the incident, the informant and the deceased were living in village Raja-Ka-Purwa, hamlet of Bhadehara within the limits of police station Mohan Ganj, District Raibareli. At that time, Appellants Lal Mohammad, Samar Bahadur Singh, Ibrahim alias Matau and Murtaza were also living in the said village and Appellants Rahmat Ullah and Rasool were living in village Chunni-Ka-Purwa and Appellant Muneer in village Shiva-Ka-Purwa. At that time, Khalil Ahmad (P.W. 2) was living in the village Tahavvarkha-Ka-Purwa, hamlet of Sarai Mahesh within the limits of police station Jayas, District Raibareli and Mohammad Sharif (P.W. 4) was living in village Peerhi Pure Ram Baksh within the limits of police station Jayas, district Raibareli.

It is pertinent to mention that the Appellants are inter-connected; Appellants Muneer and Rasool are the brothers-in-law of Appellant Lal Mohammad and Appellants Murtaza, Ibrahim and Samar Bahadur belong to the party of Lal Mohammad.

On 9.3.1983 at about 6.00 p.m. while Khalil Ahmad (P.W. 2) was returning on a cycle from village Peerhi, where he had gone to the place of Lekhpal to collect an intkhab (land record) and had reached near the grove of Lalloo on Akelwa-Maharajganj road, accompanied by the deceased Dilsher, who was also on a cycle, he saw Appellants Lal Mohammad, Samar Bahadur Singh, Rahmat Ullah, Rasool, Muneer and Murtaza armed with lathies and Appellant Ibrahim alias Matau armed with a knife coming. The Appellants shouted that it was a good opportunity and thereafter Appellants, other than Appellant Ibrahim alias Matau, started belabouring Dilsher with lathies. As a consequence of the assault Dilsher fell down. Then Appellant Ibrahim alias Matau shouted that he be permitted to take out his eyes. Thereafter, Appellant Ibrahim alias Matau stood in front of Dilsher and inflicted a knife blow and took out his left eye. Thereafter, Ibrahim alias Matau also inflicted some more knife blows on Dilsher''s person. In the meantime, Khalil Ahmad (P.W. 2) raised cries, whereupon Appellant Lal Mohammad inflicted a lathi blow on his person and told him to run away otherwise he would be killed. Hearing the cries of Khalil Ahmad, Mohammad Sharif (P.W. 4) also came on the place of the incident and saw the incident. After assaulting Dilsher the Appellants ran away in the eastern direction.

Thereafter, Khalil Ahmad proceeded to village Raja-Ka-Purwa, which he reached at about 7.00 p.m. (one hour later) and there informed Dilsher''s brother Mohammad Taha (P.W. 1) about the incident. Then, Khalil Ahmad went to village Bhadehara, where he stayed at night at the house of Budhai Lodh. Next morning he returned to his house.

The evidence of Mohammad Taha (P.W. 1) shows thus:

On 9.3.1983 at about 7.00 p.m. Khalil Ahmad (P.W. 2) came to his house and informed him that near the grove of Ashwani Kumar at the outskirts of village Dohramau, the Appellants had killed Dilsher. On account of fear and anxiety, he did not proceed to lodge the F.I.R. at night. Next morning, accompanied by Lal Mohammad, son of Jumman and Chaubey, son of Shakur, he went to village Madhupur and from there along with them went to the place of the incident, where he found the corpse of his brother Dilsher, from which left eye was missing. He also found the cycle of Dilsher lying nearby. At the place of the incident, he met Mohammad Sharif (Chowkidar) and accompanied by him proceeded to police station Jayas. On the way at bus-stand, he got the F.I.R. scribed by Ashok Kumar and after affixing his signatures on the same proceeded along with it to police station Jayas, where he lodged the same.

The evidence of Head Moharrir Ram Avadh Raj (P.W. 5) shows that on 10.3.1983 at about 11.00 a.m. Mohammad Taha came to police station Jayas and lodged his written F.I.R. (exhibit Ka-1), on the basis of which he prepared the chik F.I.R. (exhibit Ka-3) and registered a case vide exhibit Ka-4 in the General Diary.

The evidence of S.I. Uday Raj Singh (P.W. 6) shows thus:

The F.I.R. was lodged in his presence. At police station Jayas itself he recorded the statement of the informant Mohammad Taha and thereafter left for the place of the incident, where he prepared inquest on the corpse of the deceased and sent the same for autopsy. He seized from the place of the incident plain and blood stained earth in separate containers, under separate recovery memos. He also seized from near the corpse a cycle under a recovery memo (exhibit Ka-12). He then recorded the statement of Mohammad Sharif (P.W. 4) and started searching the accused. On 11.3.1983, he arrested Appellant Lal Mohammad from Nakchhed-Ka-Purwa within the limits of police station Naseerabad, district Raibareli. He then learnt that Appellant Samar Bahadur Singh had been arrested by the police of police station Mohanganj and proceeded to the said police station, where he recorded the statement of Samar Bahadur Singh. On 12.3.1983, he came back to police station Jayas, where he received the post-mortem report of Dilsher. On 13.3.1983, he called witness Khalil Ahmad (P.W. 2) to police station Jayas and recorded his statement. He did some other investigation also, but since, in our view, a reference to it is not necessary for the disposal of these appeals we are not adverting to it.

After completing the investigation, he submitted the charge-sheet against the Appellants.

Going backwards, the injuries of Khalil Ahmad (P.W. 2) were medically examined on 11.3.1983 at 4.00 p.m. by Dr. P. N. Mishra (P.W. 7) at Sadar Hospital, Raibareli, who found on his person a solitary contusion 6 cm. x 4 cm. on the dorsum of the left foot in an area of medial half close to anterio border of the left outer mallaeolus. The injury report of Khalil Ahmad is exhibit Ka-15 and its perusal shows that the injury suffered by him was attributable to a blunt weapon and its duration was about two days.

In his statement in the trial court, Dr. Mishra stated that Khalil Ahmad could have suffered the said injury on 9.3.1983, at 6.00 p.m. as a result of blow by lathi.

Once again going backwards, the autopsy on the corpse of the deceased Dilsher was conducted on 11.3.1983 at 4.00 p.m. by Dr. S. P. Srivastava (P.W. 3), who found on it the following ante-mortem injuries:

(i) Incised wound 5 cm. x 3 cm. x brain deep on the left orbital fossa and eye missing completely.

(ii) Incised wound 3 cm. x 2 cm. at the lower part of chin on left side bone deep and left lower mandible broken.

(iii) Bruise 1 cm. x 2 cm. on the right side of forehead about 4 cm. above from eyebrow. On cutting clotted blood present.

(iv) Lacerated wound 6 cm. x 3 cm. brain deep at left parietal bone about 3 cm. above from left ear and 12 cm. above left middle of eyebrow.

(v) Incised wound 4 cm. x 3 cm. scalp deep and 2 cm. away from injury No. 4 on left side of head.

(vi) Lacerated wound 4 cm. x 3 cm. brain deep at left mastoid region 4 cm. below from left ear.

(vii) Lacerated wound 3 cm. x 1.5 cm. at the vertex, 4 cm. away from injury No. 6.

(viii) Bruise 8 cm. x 4 cm. at the left shoulder. On cutting blood present. Bruise 8 cm. x 4 cm. at upper part of left side of chest, 8 cm. above nipple.

(ix) Bruise 20 cm. x 6 cm. at the right side of back.

(x) Abrasion in an area of 5 cm. x 4 cm. on the front side of left knee joint.

On internal examination Dr. Srivastava found fractures of left side of skull and left lower mandible.

In the opinion of Dr. Srivastava, the deceased died on account of coma as a result of multiple injuries suffered by him.

The case was committed to the Court of Sessions in the usual manner, where the Appellants were charged for offences mentioned in paragraph 1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

During trial, in all, the prosecution examined seven witnesses. The two eye-witnesses, namely, Khalil Ahmad and Mohammad Sharif were examined as P. Ws. 2 and 4 respectively. It is significant to mention that the informant Mohammad Taha (P.W. 1) is not an eye-witness.

The learned trial Judge believed the evidence adduced by Khalil Ahmad (P.W. 2) and Mohammad Sharif (P.W. 4), as also that of Mohammad Taha (P.W. 1) and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, these appeals.

We have heard learned Counsel for the parties and gone through the entire record and, in our view, these appeals deserve to be allowed.

A perusal of what has been mentioned above would show that the conviction of the Appellants is founded on the ocular account furnished by Khalil Ahmad (P.W. 2) and Mohammad Sharif (P.W. 4). We make no bones in observing that we have strong reservations on the claim of these witnesses of having seen the incident.

However, before we furnish specific reasons for reaching the said conclusion, we would like to point out that the F.I.R. in the instant case is inordinately belated and the unexplained delay in its lodging is suggestive of the fact that the informant Mohammad Taha (P.W. 1) has falsely nominated the Appellants therein. We have earlier seen that the evidence of Mohammad Taha is to the effect that on the date of the incident at about 7.00 p.m. Khalil Ahmad (P.W. 2) came to his house in village Raja-Ka-Purwa within the limits of police station Jayas and informed him about the incident. In our view, had this been true, then there was no justification on his part in lodging the F.I.R. sixteen hours later, i.e., on 11.00 a.m. on 10.3.1983, at police station Jayas, which was situated at a distance of only fifteen kilometres from the place of the incident. It is significant to mention that we are not prepared to stomach the explanation furnished by Mohammad Taha for the inordinate delay in lodging of the F.I.R. In his examination-in-chief, he admitted that at night on account of fear, he did not go to the police station to lodge the F.I.R. It is significant to point out that the said explanation is missing in the F.I.R. despite the fact that it was not lodged by him in haste but sixteen hours after he received information from Khalil Ahmad. It is pertinent to mention that during the course of his cross-examination, he was asked as to why he did not furnish it in the F.I.R. and the answer which he gave was that he had told it to the scribe of the F.I.R. and could furnish no reason as to why same was not mentioned in the F.I.R.

In the instant case, apart from the said explanation being absent in the F.I.R. we also find that it is missing in the statement of Mohammad Taha recorded u/s 161, Cr. P.C. When he was specifically asked whether he had furnished the said explanation to the Investigating Officer, he replied that he had mentioned it to Investigating Officer but could furnish no reason as to why he did not record it. We make no bones in observing that we are not prepared to believe him.

It is significant to mention that delay in the lodging of the F.I.R. assumes great significance because there is enmity between the informant and the Appellants.

In our view, the unexplained delay in lodging the F.I.R. does not exclude the probability of the names of the Appellants creeping therein on account of enmity between the informant Mohammad Taha and the Appellants.

We now propose furnishing the specific reasons as to why we are not inclined to accept the testimony of both the eye-witnesses.

We would first like to furnish reasons in respect of Khalil Ahmad (P.W. 2), who ostensibly being an injured witness appears to be the star witness of the prosecution. In the first place, we would like to mention that we have grave doubts on his claim of having received injury as a consequence of that lathi blow inflicted on him by Appellant Lal Mohammad. We say this for a variety of reasons. Firstly, Mohammad Sharif (P.W. 4), who saw the entire incident, in his examination-in-chief did not state that he saw Appellant Lal Mohammad inflicting lathi blow on the person of Khalil Ahmad. On the converse what he said was that after the incident, Khalil Ahmad told him that Lal Mohammad had assaulted him with a lathi. We fail to see as manifest from the evidence of Khalil Ahmad that when the lathi blow was inflicted by Lal Mohammad at the end of the incident, then why Mohammad Sharif did not state about it. The answer, in our view, is simple, namely, that Khalil Ahmad did not suffer injuries in the incident and his injuries were manufactured. We say this because in the first place, we find that he sustained a solitary injury, namely, a contusion 6 cm. x 4 cm. on the dorsum of the left foot in an area of medial half close to anterio border of the left outer mallaeolus and the said injury was examined on 11.3.1983 at 4.00 p.m. i.e., 46 hours after the incident. In our view, had Khalil Ahmad suffered injuries in the incident then the Investigating Officer would have got them examined on 10.3.1983, itself after the F.I.R. had been lodged. It is pertinent to mention that not only a perusal of the said injury makes it manifest that it could have been manufactured, but Dr. P. N. Mishra (P.W. 7), who medically examined it, in his cross-examination also admitted that the said injury could be self-suffered.

We make no bones in observing that we find it unsafe to accept the testimony of Dr. Mishra that the said injury could have been suffered by him (Khalil Ahmad) on 9.3.1983 at 6.30 p.m. by a lathi because in his cross-examination, Dr. Mishra himself admitted that the duration of a contusion is given on the basis of its colour and in the injury report he had not noted the colour of the contusion.

For the aforesaid reasons, we have reservations on the factum of Khalil Ahmad (P.W. 2) suffering injuries in the incident.

There are certain other reasons also, which have prompted us not to place reliance on the evidence of Khalil Ahmad. It is significant to point out that in his statement in the trial court, Khalil Ahmad stated that while he was returning from Peerhi from the house of Lekhpal, where he had gone to collect an intkhab (document pertaining to land), he was joined on the way by deceased Dilsher and the incident took place. However, in his statement u/s 161, Cr. P.C., he did not mention that while he was returning from Peerhi, the incident took place. On the converse, he stated therein that four days ago, while he, along with Dilsher, was returning from the sasural of his brother in village Subedar-Ka-Purwa, the incident took place. When he was confronted with the dichotomy between his statement in trial court and his statement recorded u/s 161, Cr. P.C., he replied that both statements were correct. We are certainly not prepared to believe him because, in our view, only one of them could be correct or both were false.

That apart, we find that although Khalil Ahmad is an injured eye-witness of the incident, the Investigating Officer interrogated him four days after the incident. It is significant to mention that in his examination-in-chief, the Investigating Officer, S.O. Uday Raj Singh (P.W. 6) stated that on 13.3.1983, he called him at the police station, where he interrogated him. It is pertinent to mention that the evidence of Khalil Ahmad makes it manifest that on 10.3.1983 and 11.3.1983, he remained at his house. In our view, had he really been an injured witness of the incident and had seen the incident the Investigating Officer would have interrogated him much earlier.

The Supreme Court in paragraphs 15 and 18 of the oft-quoted case of Ganesh Bhavan Patel and Another Vs. State of Maharashtra, , has frowned upon the belated interrogation of the witness u/s 161, Cr. P.C. and has construed it as a circumstance for not attaching weight to the evidence of such a witness. In paragraph 18 the Supreme Court has observed thus:

In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the Investigating Officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses, who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here the natural order of priorities seems to have been reversed. The Investigating Officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. on the 30th, of constable Shinde at 4 a.m. and thereafter of Welji, Kanjibhai (P.W. 7) Santukbai (P.W. 6) Pramila and Kuvarbai, between 8 a.m. and 1 p.m.

There is another infirmity in the evidence of Khalil Ahmad, which, in our judgment, renders it unsafe to accept it. It is significant to point out that in his statement in the trial court, Khalil Ahmad stated that Appellant Ibrahim alias Matau inflicted a knife blow on the neck of the deceased Dilsher from front side and one on the back of his neck. However, in his statement u/s 161, Cr. P.C., this was not mentioned by him and when he was confronted with the said omission, all what he could answer was that he had mentioned it to the Investigating Officer and could furnish no reason as to why he had not recorded it in his statement.

In our judgment, when the aforesaid infirmities in the evidence of Khalil Ahmad are examined in the background of the fact that in his cross-examination he admitted that before the incident, he had been prosecuted for murder of one Noor Mohammad, wherein he had been convicted from the trial court ; acquitted from the High Court ; and the appeal preferred by the State was pending in the Supreme Court, it becomes extremely unsafe to accept his testimony.

In our view, the possibility of a witness like him deposing at the instance of police cannot be ruled out.

For the said reasons, we are not inclined to place reliance on the testimony of Khalil Ahmad (P.W. 2).

We now come to the evidence of Mohammad Sharif (P.W. 4). Since he has furnished the same manner of assault as Khalil Ahmad (P.W. 2) (excepting that he does not state that Appellant Lal Mohammad assaulted Khalil Ahmad), we do not want to burden our judgment by reiterating all the details. We, however, make no bones in observing that we are loathe to accept his claim of having seen the incident. It is significant to point out that in his cross-examination he admitted that on the date of the incident at about 7.00-8.00 a.m. he had left for Jayas, where he wanted to purchase a bullock, and had reached Jayas in two hours. At Jayas, he took half an hour in seeing the bullock and then returned for his house and on the way saw the incident. In our view, if his statement is to be believed then much before 6.00 p.m. (the time of the incident) he would have reached his house. If he took two hours in reaching Jayas from his house, then it follows as a logical imperative that he would have taken the same time in returning to it. In our view, even if it is assumed that at a leisurely pace he proceeded back to his house from Jayas he would have reached his house by 1.00-1.30 p.m. In our judgment, there was no question of his being on the way from Jayas to his house when the incident took place.

As a matter of fact, the story of his going to Jayas to purchase bullock appears to be a figment of imagination. In his cross-examination he admitted that day there was no market in Jayas. That apart, we find in his statement u/s 161, Cr. P.C., he has not stated that while he was returning therefrom the incident took place but on the converse stated that while he was returning from Akelwa to Peerhi the incident took place. When he was confronted with the dichotomy between his statement in the trial court and his statement recorded u/s 161, Cr. P.C., he failed to give any satisfactory answer.

Apart from it, we have already seen that his evidence is at variance with the evidence of injured witness Khalil Ahmad inasmuch as Khalil Ahmad says that Lal Mohammad assaulted him with a lathi but he (Mohammad Sharif, who has seen the entire incident) does not say that he saw Appellant Lal Mohammad assaulting Khalil Ahmad. This assumes significance because a perusal of the statement of Khalil Ahmad (P.W. 2) shows that it was at the fag end of the incident Appellant Lal Mohammad assaulted him with a lathi and that being so when he (Mohammad Sharif) deposed about the entire incident it becomes significant that he did not state about Lal Mohammad assaulting Khalil Ahmad with a lathi.

We are not oblivious of the fact that Mohammad Sharif ostensibly has no grudge against the Appellants and appears to be an independent witness. But we make no bones in observing this Court does not accept the testimony of a witness ipso-facto merely because he is independent. It only accepts the statement of an independent witness if the same appears credible. We regret this is wanting in the case of his testimony.

Way back in the year 1981 in the oft-quoted case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, , Chandrachud C.J. has dealt with a situation where ostensibly there was no reason for a witness to falsely implicate accused. His Lordship in para 33 has observed thus:

...The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions....

For the aforesaid reasons the testimony of Mohammad Sharif (P.W. 4) does not inspire confidence.

We may also mention that there are some other features, which render it extremely unsafe for us to sustain the impugned judgment. We would like to first advert to the evidence of Head Moharrir Ram Avadh Raj (P.W. 5). It is significant to mention that his examination-in-chief shows that the F.I.R. was lodged on 10.3.1983 at 11.00 a.m. but the special report, as admitted by him in his cross-examination, was sent to the Magistrate the next day, i.e., on 11.3.1983. No reason has been furnished by the prosecution for the delay in sending the special report to the Magistrate. In this connection, we would like to refer to Section 157, Cr. P.C. wherein there is an obligation on the officer incharge of police station to forthwith send a copy of the report to the concerned Magistrate.

Secondly, we would like to point out that the Investigating Officer S.I. Uday Raj Singh (P.W. 6) in his cross-examination has admitted that in none of the papers which he prepared during investigation, there is a mention of Section 323, I.P.C. This circumstance, in our view, manifests that the injury of Khalil Ahmad has been self-suffered. It needs to be pointed out that during cross-examination Dr. P. N. Mishra (P.W. 7), who medically examined Khalil Ahmad (P.W. 2), was asked whether his injury could be self-suffered and he replied in the affirmative.

In the result:

(A) Criminal Appeal No. 725 of 1984:

The appeal is allowed. The convictions and sentences of the Appellants Lal Mohammad, Samar Bahadur Singh and Ibrahim alias Matau for the offence punishable u/s 302/149, I.P.C. and the sentences of imprisonment of life awarded to them thereunder are set aside. They are acquitted for the said offence. The conviction and sentence of one year''s R.I. awarded to Appellants Lal Mohammad and Samar Bahadur Singh for the offence punishable u/s 147, I.P.C. is set aside. They are acquitted thereunder. The conviction and sentence of two years'' R.I. awarded to Appellant Ibrahim alias Matau for the offence punishable u/s 148, I.P.C. is set aside. He is acquitted thereunder. The conviction and sentence of six months'' R.I. awarded to Appellant Lal Mohammad for the offence punishable u/s 323, I.P.C. is set aside. He is acquitted thereunder.

Appellants Lal Mohammad, Samar Bahadur Singh and Ibrahim alias Matau are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.

(B) Criminal Appeal No. 726 of 1984:

The appeal is allowed. The conviction and sentence of Appellant Rahmat Ullah on both the counts, namely, under Sections 302/149, I.P.C. and 147, I.P.C. and his sentence of imprisonment for life on the former count and one year''s R.I. on the latter are set aside. He is acquitted thereunder. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.

(C) Criminal Appeal No. 727 of 1984:

The appeal is allowed. The convictions and sentences of the three Appellants, namely, Rasool, Muneer and Murtaza, for the offences punishable under Sections 302/149, I.P.C. and 147 I.P.C. and their sentence of imprisonment for life on the first count and one year''s R.I. on the second count, are set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.