Meer Shah and others vs State of U.P.

V.P. Mathur, J.

This appeal is directed against the judgment and order passed by Sri Brahma Kishore, the then HI Addl. Sessions Judge, Kanpur, on 13.3.78. The learned Judge were disposing of Sessions Trial No. 206 or 1976 and he contende the four appellants under Section 302/34 and 307/34 I.P.C. and sentenced ail of them to imprisonment for life on the first count and to 7 years rigorous imprisonment each, on the second count. The conviction under Sec. 307/34, I.P.C. was based on two different counts for causing injuries to Shahban Shah and Chhedi Shah and two terms of imprisonments have been passed but all the sentences have been made concurrent.

The occurrence took place in village Baragaon, six miles away from police station Maharajpur, Kanpur Metropolitan area on 17.7.73 at about 10 p.m. The first information report was lodged by Rasool Shah (P.W.2) on 18.7.73 at 0.30 hour.

Abdul Shah

Meer Singh (Appellant No.1)

Jumman Shah (Appellant No.2)

Dost All Shah (Appellant No.3)

Muneer Shah

Tilkoo (Deceased)

Rasool Shah (P.W.2)

Shebhan Shah

Chedi Both (injured)

It is also in evidence that a cousin brother of Abdul Shah and Muneer Shah is Wali Mohammad and his son is Ahmad Ali Shah, who is also said to be injured in this case. Rasool Shah''s daughter Qutubuness was married to one Sultan Shah of Bakewar (D.W. 1). She died. Then Chhedi Shah received a proposal for the marriage of his daughter Kusum to Sultan Shah but because of difference in ages of the two, he did not agree to this proposal. Ultimately, 20 days before this occurrence Jumman Shah''s wife''s sister riaseer Bano alias Bhoori was married to Sultan Shah with the intervention of Jumman Shah.

The prosecution story is that Rasool Shah was a gobetween in the marriage of Smt. Kalli to Jumman Shah about 11 years prior to this incident. For a period of 7 years she did not give birth to a child, with the result that Jumman Shah had started ill treating her and was occasionally beating her. Upon this Rasool Shah and Tilkoo Shah alias Tilfoo Shah showed their resentment because it was at their instance that this marriage had taken place. They threatened Jumman Shah with sending information to the father of the lady and also reporting the matter to the police if he persisted in his misbehavior. There was no effect of this threat and beating etc. continued as before. In that connection on 17.7.73 at 10 a.m. a Panchayat was called in the open land lying in front of the house of the appellants and by the side of the house of the first informant. Tilkoo Shah had summoned this Panchayat and had gone on the spot with a lantern. The Rfcnchayat was attended by the tirst informant Rasool Shah, deceased Tilkoo alias Tilfoo Shah, injured Shahban Shah, Gafoor Shah (appellant No. 4), his three sons (appellant 1, 2 and 3) Wali Mohammad and his son Ahmad AH, and two noncaste persons namely Gulab Singh Pradhan and Harpal Singh. The talks started when Tilkoo Shah brought it to the notice or Panchayat that Jumman Shah was ill treating his wife because she had not born any child,. Tilkoo said that it was not proper. There was a exchange of hot words between him and Jumman Shah, who resented intervention in his family affairs. Then three brothers, namely Meer Hasan alias Amir Hasan alias Heiu, Jumman Shah and Dost Ali Shah ail entered their house and returned with arms. The first was armed with a knife, the second was with an axe and the third with a lathi. They fell upon Tilkoo Shah and Shahban Shah and caused them grievous injuries. Chhedi Shah, another brother of Tilkoo Shah, was sitting at the door of his house and on hearing the cries he rushed and tried to save the situation by intervening. He was also assaulted and received injuries. Injuries were also received by Ahmad Ali and his son Wali Mohammad. Then the witnesses collected. Gafoor Shah, who was already present in the Panchayat from before, also entered in the fray and exhorted his sons to finish the prosecution side because they were constantly interfering with their family affairs. It was also said that every time when one of the victims tried to run our, he was pushing him for further beating.

With the intervention of the witnesses who had collected, the matter, however, stopped and the appellants entered their house. Rasool Shah arranged for a conveyance and brought his both the injured brothers, namely Tilkoo Shah and Shahban, to the police station Maharajpur covering a distance of six miles. There he lodged the first information report (Ext. Ka. 3). Then the injured were sent to Hospital for treatment but it appears that on way Tilkoo Shah succumbed to his injuries. Shahban Shah was medically examined for his injuries at 3. a.m. on 18.7.73 by Dr. A.K. Khanna of U.H.M. Hospital, Kanpur. His injury report is Ext. Ka. 7. Chhedi Shah was examined by the same Doctor the same day at 3.30 a.m. and Ahmad Ali at 3.25 a.m. Their injury reports are Exts. Ka. 8 and Ka. 9 respectively. The postmortem examination on the dead body of Tilkoo Shah was conducted by Dr. R.P. Misra (P.W.1) vide Ext. Ka, 2 at 4 p.m. on 17.7.73. The injuries that were noted on the persons of the victims are as follows:

Shebhan Shah:

Lacerated wound 3" x 1/4" x HJ.O. on the top of head 7'''' from nose.

Lacerated wound 5" x 1/4" x U.0.1" behind injury No. 1,

Incised wound 11/2" x 1/4" x U.O. on back of chest left side middle 1/3rd.

Incised wound 1/2 1/4" x U.O. on back chest near spine on left side lower part.

Incised wound 3/4" x 1/4" x U.O. on spine in mi Me 1/3rd.

Incised wound 1/2" x U.O. right side of chest on outer part 4" below axilla.

Abraided contusion on back of right dorsum

of hand outer part including right little finger and right ring finger.

Contusion 3" x 1" on left side of head 41/2" above Pinna left.

Chhedi Shah:

lacerated wound 2" x 1/2" U.O. on left side of head 41/2" above left Pinna of ear.

Lacerated wound 31/2" x 1/4" x U.O. on top of head 61/2" above left Pinna of ear.

Abraded contusion 1/4" x 1/4" on back of left forearm middle.

Contusion 31/2" x 1" on back of right upper arm lower 1/3rd.

Ahmad Ali:

Pain on back of left shoulder. No external mark of injury seen.

Postmortem examination report shows as under:

Tiikoo alias Tilfoo Shah:

Incised wertieal wound 31/2" x 1/4" x skin Rt. upper chest wall in front.

Incised wound 21/2" x 1/2" bone deep with whole side of muscles divided and over the shoulder joint. Capsule divided lying obliquely upper back of left shoulder going deep to chest cavity.

Incised wound 21/4" x 3/4" x chest cavity deep lying horizontally left lower back of chest 3" to the left of mid line.

Incised wound 11/2" x 3/4" x bone obliquely middle of back closely to it middle with division of transverse process and 10th, 11th rib roots.

Contusion 31/2" x 1" horizontally upper left scapula.

Exts. Kha. 4, Kha. 5 and Kha. 6 have been placed on record to show that Dr. Vijaipal also of U.H.M. Hospital, Kanpur (D.W. 6) examined Dost Ali, Jumman Shah and Amir Hasan alias Meer Hasan for their injuries on 20.7.73 at 4.50 p.m., 5 p.m., 5.10p.m. respectively. All these injured appeared before the Doctor by themselves and were not referred to by the Police.

On behalf of the prosecution 10 witnesses have been examined. The witnesses of fact are Rasool Shah (P.W. 2), shahban Shah injured (P.W. 3), and Gulab Singh Pradhan (P.W. 4), Ali and others are formal witnesses including the two Doctors and teh Investigating Officer.

The defence story was a complete denial of the holding of any Panchayat as well as the motive put forth by the prosecution. They gave a different version of the matter. Their contention was that Jumman Shah had succeeded in prevailing upon Sultan Shah to marry his wife''s sister Smt. Bhoori. This Sultan Shah was first married to the daughter of Rasool Shah and after her demise Chhedi Shah wanted to marry his daughter to him but some how this proposal failed and for that reason the complainant side started to nourish enmity against Jumman Shah. The occurrence took place between 10 and 11 p.m. on 17.7.73 and the scene of occurrence is also the land infront of the house of the accused as is suggested by the prosecution, but what happened was that the accusedappellants were all at their house when Shahban Shah, Chhedi Shah and Tilkoo alias Tilfoo Shah and one other person reached there. They started beating the appellants who raised an alarm and cried for help and also defended themselves. The ladies of their house and their close relation Raiz Ali, who was also present there, raised an alarm, upon which some persons of the locality came to their'' rescue and assaulted the raiding party. It was a pitch dark night and hence the assailants could not be identified and in this manner injuries were sustained by Dost Ali, Jumman Shah and Meer Hasan and injuries might have been received by the raiding party also. Sultan Shah, Mohammad Ibraheem, Chhotey Lal, Riaz Ali, Station Officer B.D. Singh and Dr. Vijaipal were examined as D.Ws. 1 to 6, respectively, in defence.

The principle of law needs to be restated here that the prosecution has always to stand on its own legs and no weakness in the defence case can come to the advantage of the prosecution to prove its version. Therefore, even though there is a counter version and, as we will shortly show, the defence version may not be acceptable, it will have no effect upon the prosecution case and the, burden still remains on the prosecution to prove its case satisfactorily and beyond doubt. There is no dispute as regards the fact that Rasool Shah''s daughter Qutubunsia was married to Sultan Shah of Bakewar, who has been examined as D.W. 1 in this case. This lady died some years Back and it is also admitted that now Naseer Bano alias Bhoori, who is the sister of Smt. Kalli, wife of Jumman Shah, has been married to him on 28.6.73 as will be apparent from the statement of Sultan Shah as well as the Kazi, who have been examined in this case. It is also admitted that Chhedi Shah wanted to marry his daughter Kusum to Sultan Shah but for one reason or the other the proposal could not materialise. The prosecution case is that the marriage of Kalli to Jumman Shah had been arranged at tne instance of deceased Tilkoo Shah alias Tilfoo Shah and Rasool Shah and, therefore, when Jumman Shah for the reason that the lady did not bear him any child, started to beat and ill treat her, Rasool Shah and Tilkoo Shah felt their responsibility as the persons who had arranged the marriage " and tried to dissuade Jumman Shah from his irresponsible act. This is said toi be the basis of this occurrence. Smt. Kalli''s father Chhotey Lal (D.W. 2) has been examined in this case as a defence witness. He clearly denied the fact that his daughter Kall was ever illtreated and beaten by Jumman Shah or that the marriage had been arranged at the instance of Rasool Shah and Tilkoo Shah. The prosecution case in this respect, therefore, is not satisfactorily made out and even though it may be assumed for a moment that Jumman Shah was ill treating his wife, it will be difficult to believe that Rasool Shah and Tilkoo Shah who allegedly felt the pinch had any satisfactory reason therefore. When we proceed further, we learn from the prosecution evidence that when Jumman Shah allegedly did not mend his ways a Panchayat was held on 17.7.73 at 10 p.m. The contention of Rasool Shah was that he had sent a boy to call Gulab Singh Pradhan for this Panchayat and Gulab Singh''s statement as P.W. 4 is revealing that the boy came to him and told that a Panchayat was to be held but neither he gave any time, nor date, nor reason for holding of the Panchayat. This being so, it is really very strange that in spite of no particulars of the Panchayat, even in respect of the time, Gulab Singh could have reached precisely at the time and the place where Kanchayat was allegedly held at 10.00 p.m. The statement of Rasool Shah is that Gulab Singh Pradhan and Harpal Singh were present in the Panchayat as Panches in addition to himself, Tilkoo Shah, Shahban Shah, Gafoor Shah, Meer Hasan, Jumman Shah, Oost Ali, Wali Mohammad and Ahmad Ali, Gulab Singh however says that Harpal Singh came after the occurrence on hearing about it Gulb Singh also further says that Harpal Singh and Bhdai both came together after the occurrence was already over Shahban Shah, however, contends that Bhadasi was not present in the village on that day. According to Shahban Shah (P.W.3), he along with Rasool Shah and Tilkoo Shah accompanied by Gulab Singh reached the door of the appellant and Gulab Singh called the appellants who were inside the house and then the panchayat started Tilkoo Shah had taken a lighted lantern which was placed on the spot. Gulab Singh makes a different statement. According to him, when he reached infront of the house of the appellants, he found the accused and their family members sitting at the door and talking. According to Rasool Shah, Chedi Shah came when the marpeethad started on hearing the noise and was not present in the Panchayat. In the first information report also there is a clear mention of the fact that Chhedi Shah came on the spot and tried to save his brothers and received injuries in return. According to Rasool Shah, Shahban Shah received four knife injuries on his back and Tilkoo Shah suffered three attacks with knife while Shahban Shah had two axe blows which hit him on his head. The postmortem examination report, however does not support this story. In the first information report there is absolutely no mention on the presence of Ahmad Ali. Only Wali Mohammad''s presence is mentioned but now even Ahmad Ali is said to have suffered injuries and he was medically examined for his injuries vide injury report Ext. Ka. 9, while Wali Mohammad was not medically examined at all. In our opinion, the whole story regarding holding of the Panchayat falls to the ground and is not at all proved. The occurrence undoubtedly took place at the door of the house of the first informant or his brothers. This is only by the side of the wall of their house and they have no entrance on that side. Therefore, it was the duty of the prosecution to prove satisfactorily beyond doubt why and in what manner the prosecution side reached the door of the house of the appellant where this Marpeet started. The reason for their presence on the spot is not established. It is really very strange that when the Panchayat was being held in respect of the maltreatment and ill treatment to Smt. Kalli her father was not invited to join perusal of the entire prosecution evidence will clearly show that it is not yet clear as to how the Marpeet started, who started it and for what reason it was started. The genesis and the origin of the occurrence, therefore, remains shrouded in mystery and even though we reject the defence version as unreasonable and unbelievable, it will not prove the prosecution case at all.

Undoubtedly the marpeet took place between Dost Ali, Jumman Shah and Amir Hasan, three of the appellants and injured persons, on one side, and Shahban Shah, Chhedi Shah and Ahmad Ali''s all injured, and Tilkoo Shah alias Tifloo Shah, who suffered fatal injuries and died, on the other. It clearly shows that it was a two sided affair and both the side used weapons and caused injuries to each other. But how it had started and who was the aggressor is not proved. It will, therefore, be a case full of doubt, the benefit of which must go to the appellants.

The role assigned to Gafoor Shah is extremely unnatural. He is 60 years of age. The prosecution side consisted of young people and it would be too much to think that he would enter the Marpeet and successfully push the victims for further being every time when they tried to run away.

Considering all the facts and circumstances of the case, we are of the opinion that there was no jurisdiction for the conviction of the appellants.

In the result, the appeal is allowed, The convictions of the appellants under Sections 302/34 and 307/34 I.P.C. as well as the sentence awarded to them are set aside. They are given benefit of doubt and hence acquitted. They are on bail and they need nor surrender. Their bail bonds and sureties are discharged.