Mohammad Ali and Others vs State of U.P.

R.K. Shukla, J.—Mohammad Ali, Ahmad Ali, Mastoor Ali and Iqbal Appellants have preferred this appeal against the judgment and order dated 13-3-1978, passed by the Additional Sessions Judge, Etah, whereby he has convicted all the aforesaid Appellants u/s 302/34 IPC and sentenced each one of them to undergo imprisonment for life. Each one of them is further convicted u/s 307/34 IPC und sentenced to five years'' R.I. All the sentences were ordered to run concurrently.

Brief facts of the case are that there was litigation in the consolidation Courts between Mahmood Khan (deceased) and injured Munir Khan on one side and Appellants Mohammad Ali and others on the other side. The deceased, Mahmood Khan and his brother Munir Khan injured had plot of water melon (Bari of Tarbooz) in the ''Godava Har'', which they were watering since the night between 29/30-5-1976. On 30-5-1976 at about 12 noon when Mahmood Khan and his brother Munir Khan had irrigated 3/4th of their aforesaid melon field, the aforesaid four Appellants came there from the side of their village, armed with Lathis and Phawada. Appellant Mastoor Ali was armed with Lathi and Phawada both. Rest of the three Appellants had Lathis only. They went to the Kulaba and started diverting the water towards their field, Mahmood Khan and his brother Munir Khan went to them and told them that their melons had to be watered a little more and so the Appellants should not change the direction of the water. The Appellants did not pay any heed to this request and all the four Appellants started beating Mahmood Khan and Munir Khan with Lathis. Mahmood Khan fell down and died on the spot while Munir Khan sustained serious injuries on his head. Witnesses Mustaq Khan (PW 5), Altaf Khan, Imtiaz Ali (PW 4), Jawad Ali and informant Chunney Khan (PW 2), who were present in the nearby fields saw the occurrence. Chunney Khan took the dead body of Mahmood Khan and injured Munir Khan on a bullock cart to the police station Jalesar situated at a distance of six and a half miles north from the place of occurrence, and lodged an FIR on 30-5-1976 at 4.25 P.M. A case was registered u/s 302 IPC against all the four Appellants and matter was entrusted for investigation to Sri O.P. Tyagi, S.I., who recorded the statement of the informant Chunney Khan at police station and prepared inquest report and sent the dead body of Mahmood Khan for post mortem examination. Munir Khan was also sent for his medical examination.

3 Dr. R.S. Gupta (PW 9) conducted the post mortem examination on the dead body of Mahmood Khan on 31-5-1976 at 5.20 P.M. and found the following two ante-mortem injuries on the body of the deceased:

Contusion (?) Traumatic swelling 7 cm x 2 cm on right side head 13 cm from right ear 8 cm from right eye brow.

Contusion 10 cm x 3 cm on right side head 2 cm away from injury No. 1.

On internal examination whole scalp of right side was found congested, frontal bones and right parital bones had defresh fracture. In the opinion of the doctor the cause of death was due to the aforesaid two injuries.

Dr. L.N. Sharma, Medical Officer, District Hospital, Agra (PW 7) examined the injuries of Munir Khan on 30-5-1976 at 6 P.M. and found the following two injuries on his person:

Traumatic swelling 4 1/2 cm x 2 1/2 cm back of neck left side, advised X-ray.

Traumatic swelling 8 cm x 7 1/2 cm right sole head 2 cm above right ear, advised X-ray.

Both the injuries were caused by blunt weapon like Lathi and were kept under observation. X-ray report shows that there was fracture of the skull bone.

After completing the investigation, charge sheet was submitted by Sri R.P. Gupta, S.I. and the matter was committed to the Court of sessions for trial.

The prosecution examined the witnesses in support of its case. Out of whom Chunney Khan (PW 2), Imtiaz (PW 4), Mustaq (PW 5) and Munir Khan injured (PW 8) are the eye witnesses of the occurrence. Rest of the witnesses are the aforesaid doctors, I.O. and other police personnel, who are formal in nature.

The Appellants pleaded not guilty to the charges levelled against them and denied the prosecution allegations. They have set up a counter version. According to them the date, time and place of occurrence are not disputed. But regarding the manner of Marpeet, they have stated that on the date of the occurrence the Appellants Iqbal and Ahmad Ali were ploughing their field, which is near the Bamba, Mohammad Ali and Mastoor Appellants were irrigating their field, which is to the south of the Bamba. At about 11 A.M. seven persons, namely, Mahmood Khan (deceased) and Munir Khan etc. arrived and started stopping their water. They told them not to stop the water, whereupon they assaulted the Appellants and the Appellants used their Lathis in their self defence. They have further alleged that Appellants Mohammad Ali, Iqbal and Mastoor were injured in this incident. An FIR of their version was lodged by them at Kotwali, Etah on the same night at about 10.30 P.M. and they were medically examined at Etah on 31-5-1976 by Dr. R.P. Yadav (DW 2) at 9.45 A.M. Dr. Yadav found four contused swelling on left hand, left band finger (Tarjani), right wrist and right side chest of Mohammad Ali, injuries 1 and 4 were simple, injuries 2 and 3 were kept under observation and X-ray was advised, but no X-ray was done. Thus all the injuries were simple. On the same day at about 10 A.M. the doctor examined Iqbal Appellant and found five injuries on his person. All the injuries were simple except injuries Nos. 1 and 3, which were kept under observation and X-ray was advised, but no X-ray was done. Therefore, all the 5 injuries were simple. The same doctor also examined Mastoor Appellant on the same day at about 10 A.M. and found one bruise at the root of right hand thumb, which was simple. In the opinion of the doctor all the injuries were one day old. Shankar Lal (DW 3), Patraul has been produced to prove the irrigation of their field and Siyaram Gangwar (DW 4), the Record Keeper of Police Office, Etah has been produced to prove their FIR (Ex. Kha-1).

After discussing the entire evidence on the record the learned Sessions Judge has believed the prosecution version and convicted and sentenced all the four Appellants as aforesaid. He has rejected the defence version and held that injuries of the Appellants are concocted and self suffered.

The aforesaid prosecution story has been fully supported by the aforesaid eye witnesses, namely, Chunney Khan (PW 2), Imtiaz (PW 4), Mustaq (PW 5) and Munir Khan (PW 8). Munir Khan (PW 8) is an injured witness, who was irrigating his melon field with his brother Mahmood Khan (deceased). Therefore, his presence at the spot cannot be doubted. He has narrated the whole prosecution case and has stated that all the four Appellants inflicted injuries on him and Mahmood Khan (deceased), due to which he died. Chunney Khan (PW 2) is the informant, who took Mahmood Khan and injured Munir Khan to the police station and lodged the FIR. He has stated that all the four Appellants were armed with Lathis and Mastoor was further armed with Phawda also. He has narrated the whole prosecution case and manner of Marpeet in detail. According to his statement, Appellant Mastoor started stopping of flow of water towards the field of Munir Khan by his Phawda, then deceased Mahmood Khan and Munir Khan went to the field of the Appellants and requested them that in their field only one Kyari had remained unirrigated and kindly allow it to be irrigated otherwise they will suffer a loss. But the Appellants did not agree to it and Appellants Mohmmad Ali and Iqbal started beating Munir Khan with their Lathis and Appellants Mastoor and Ahmad Ali started beating Mahmood Khan (deceased) with their Lathis. On his alarm other witnesses reached on the spot and saw the occurrence. Mahmood Ali died on the spot and Munir Khan fell down there after receiving the injuries. Thereafter all the Appellants ran towards the village. He is a common relation of the Appellants and as well as complainant-party. Nothing has been brought out in his cross-examination which can create any doubt about his veracity.

The aforesaid statements of Chunney Khan (PW 2) and injured Munir Khan (PW 8) find full corroboration from the statements of other two eye witnesses, namely, Imtiaz (PW 4; and Mustaq (PW 5). Names of both these witnesses are mentioned in the FIR. They have stated that none of the Appellants were injured nor they were beaten by anybody. They have also stated that Mahmood Khan, Munir Khan and all other witnesses were empty handed. Mustaq (PW 5) had denied that he had spoken to the I.0. u/s 161 Code of Criminal Procedure that, "Mastoor Ali ne Mahmood Ke phawda mara jo mauke par gir para aur mar gaya." This statement is contrary to the prosecution case given in the FIR, wherein it is stated that all the Appellants showered Lathi blows on the deceased and Munir Khan. In the trial Court also they have stated that all the Appellants inflicted only Lathi blows on the deceased and injured Munir Khan. In such circumstances to our mind it appears that the aforesaid alleged statement of Mustaq (PW 5) recorded u/s 161 Code of Criminal Procedure was the ingenuity of the I.O. to which the witness has not agreed. All the other three eye witnesses are consistent in their statements that the deceased and Munir Khan were beaten by Lathis. Therefore, nothing turns on the aforesaid statement of Mustaq Khan recorded by the I.O. Our attention was also drawn to some other statement recorded by the I.O., but it is not necessary to mention here in detail, because they do not materially affect the prosecution case. After careful scrutiny of the statements of all the four eye witnesses, we are fully satisfied that they are reliable witnesses and their statements fully proved the prosecution case.

The statements of the aforesaid four eye witnesses find full corroboration from the medical evidence. Dr. L.N. Sharma (PW 7) has proved the injuries of Munir Khan injured and Dr. M.C. Sharma (PW 3) has X-rayed the skull of Munir Khan and proved the X-ray plates Exs. 1 and 2, according to which bones of skull were found fractured. Nothing has been brought out in the statements of the aforesaid doctors, which can adversely affect the merit of the prosecution case.

Now we proceed to examine the merit of the defence case. The date, time and place of occurrence are not disputed. There is difference in the manner of Marpeet. All the aforesaid four eye witnesses have emphatically stated that none of the Appellants were injured in this occurrence. They have further stated that none of the complainant party was armed with any weapon. It is clear from the FIR, Ex. Kha-2, lodged by Mohammad Ali after ten hours after full deliberation and consultation with Advocates at Etah. It is clearly noted down in the aforesaid certified copy of the FIR Ex. Kha-1 as under:

"Prashna : Aapne thana Awagarh FIR kyon nahin likhai tatha tahrir lekhak se kya sambandh hai aur kahan mila?

Uttar : Maine thana Awagarh isliye nahin likhai ki wakil sahab ke ray leni thi aur lekhak mere ladka ka sala hai."

Not only this, there is no direct evidence that injuries to the Appellants were caused in this occurrence. None of the injured persons has been examined by the defence. The injuries of the Appellants came before the authorities for the first time at 10.30 A.M. on 30-5-1976 and the corresponding entry in the G.D. is Ex. Kha-1, wherein some injuries of Mohammad Ali, Iqbal and Mastoor Appellants are noted. Dr. R.P. Yadav (DW 2) examined the injuries of the Appellants on 31-5-1976 in the morning and found the aforesaid injuries on the body of injured persons. They were further examined in jail by Dr. Radhey Shyam (DW 1) on 2-6-1976 at 12 noon. It is important to note that no traces of the alleged contusion measuring 2 1/2 cm x 2 cm on the head right side parital bone of Iqbal found by Dr. R.P. Yadav (PW 2) on 31-6-1976 at 9.45 A.M., were found by Dr. Radhey Shyam (DW 1). It is quite contrary to the well established principle laid down in Modi''s Medical Jurisprudence 17th Edition page 216 regarding the duration of disappearance of bruises, which reads as under:

Age of a Bruise : The age of a bruise may be ascertained from the colour changes which its ecchymosis undergoes during absorption. These colour changes are due to the disintegration of the red blood cells and staining of the thus set free haemoglobin by the action of enzymes from tissues. They commence at the periphery and extend inwards to the centre. They are red at first, but during the next three days they appear blue, bluish-black, brown or livid red, and become greenish from the fifth to the sixth day, and yellow from the seventh to the twelth day. This yellow colour slowly fades in tint till the fourteenth or fifteenth day when the skin regains its normal appearance. Moreover, its disappearance is more rapid in healthy persons than in sickly and old people with feable circulation....

It is further mentioned in the aforesaid Book of Medical Jurisprudence at page 217 as under:

But, with a view to supporting a false change of assault, bruises are sometimes simulated by the application of some irritant substance, such as the juice of Bhilawa (marking nut) or the root of Chitra (plumbago zeylanica) or Lal Chitra (Plumbago rosea). The marks produced by these substances appear like bruises, but they are dark-brown in colour with the margins usually covered with tiny vesicles and the surrounding skin is red and inflamed.

In view of the above discussions, we have no doubt that the bruises shown in injury No. 1 of Iqbal cannot disappear within 48 hours as has been done in this case. The alleged lacerated wound of 1 cm x 1/3 cm x skin deep could also not be caused by Lathi as alleged by the defence. All the injuries including the aforesaid alleged wound on head are superficial. Under these circumstances we are satisfied that there are no such serious injuries, which make it obligatory on the prosecution to explain the injuries so as to justify the occurrence as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, according to a decision of the Supreme Court in the case of Jagdish Vs. State of Rajasthan, , two conditions must be satisfied:

"1. That the injuries on the person of the accused must be very serious and severe and not superficial;

that it must be shown that these injuries must have been caused at the time of the occurrence in question."

After careful scrutiny of the defence evidence on record we agree with the findings of the learned Sessions Judge on this point that the injuries of the Appellants were not caused at the place of this occurrence and they have manoeuvred these injuries by some friendly hands. Dr. Radhey Shyam (DW1) has also admitted in his cross-examination that injuries could be self suffered.

So far as Shankar Lal, Patraul (DW3) is concerned, entries made by him in Khasra are absolutely unreliable. If this entry, Ex. Kha-14 was made on 30-5-1976 itself then it would have been just like other entries made in the Khasra. After careful scrutiny of his evidence, we agree with the findings of the learned Sessions Judge that this entry was made in the abnormal course and might have been made in collusion with the Appellants. Therefore, it is not trustworthy. We are fully satisfied that the prosecution has proved its case beyond reasonable doubt against the Appellants and the defence has miserably failed to set up their right of private defence. Consequently we reject the defence case.

Now the only question left for our consideration is as to what offences have been made out against the Appellants. There was no previous enmity between the Appellants on the one hand and deceased, Mahmood Khan and injured Munir Khan (PW 8) on the other. The occurrence was the off-shoot of a trifling incident regarding water for irrigating the field. The main purpose of the four Appellants was to take water into their field. It cannot be said that they had preplanned intention to kill Mahmood Khan. There is no doubt that all the four Appellants came with Lathis in their hands and Appellant Mastoor had Phawda also in addition to his Lathi. Lathi is a lethal weapon and when Mahmood Khan protested the stopping of water, they started beating him and his brother Munir Khan on their head. Two injuries were caused to Mahmood Khan (deceased) on his head. Munir Khan, injured had also received two injuries, one on the head and the other on the neck. Fracture of skull-bone was also found under head-injury, caused to Munir. There is no doubt that the cause of death of Mahmood Khan was these two head injuries; but prosecution evidence does not indicate as to which one of the accused-Appellants inflicted the fatal blow on the head of Mahmood Khan. As such, none of the Appellants can be held to be personally liable for the fatal injury. The liability can only be vicarious u/s 34 IPC and as such we have to find out as to what was the common intention of the accused-Appellants in furtherance of which they caused injuries to Mahmood Khan and Munir Khan In this respect it cannot be said with absolute certainty that the common intention of the Appellants was to kill Mahmood Khan or Munir Khan; but from the facts and circumstances of this case and manner of assault we are certain that the minimum common intention of the Appellants was to cause grievous injuries to the victims. It is a fact that two of the Appellants gave two Lathi blows to the deceased and the other two Appellants caused two injuries to Munir Khan. As it is not possible on the material on record to find out as to which one of the accused Appellants gave fatal blow there is no escape from the conclusion that each one of the four accused-Appellants can only be guilty of the offence u/s 325 read with Section 34 IPC. Since intention to kill is lacking, therefore, convictions of the Appellants u/s 307/34 IPC also require alteration u/s 325/34 IPC for causing serious injury to Munir Khan.

We, accordingly following the ratio of a decision of the Supreme Court in the case of Shri Kishan and Others Vs. State of U.P., , alter the conviction of each one of the Appellants from u/s 302 read with Section 34 IPC to that u/s 325 read with Section 34 IPC. Each one of them is sentenced to undergo R.I. for a period of five years on that count. The sentence of R.I. for a period of five years awarded to each one of the Appellants u/s 307/34 IPC for causing injuries to Munir Khan is also altered to three years'' R.I. u/s 325 read with Section 34 IPC. Both the sentences shall run concurrently. The appeal is allowed to that extent. The Appellants are on bail. They shall be taken into custody forthwith and sent to jail to serve out the sentences according to law.