Mohammad Shaffi and Others vs State of J. and K.

R.C. Gandhi, J.—Appellants have challenged their conviction and sentence recorded in the impugned judgment and order dated 28-7-

1995, passed in File No. 59/Session by the learned Addl. Sessions Judge, Jammu, whereby appellants Mohd. Shaffi and Mir Hussain have been

convicted under Sections 302, 325, 148, 323 read with Section 34, RPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.

10,000 each u/s 302, RPC and further sentenced to undergo rigorous imprisonment for a period of six months u/s 325, RPC; three months u/s

148 RPC; and three months u/s 323, RPC and to pay a fine of Rs. 500 each on each count. Appellants Sadiq Gani, Mir Hussain (S/o Haji Sain)

and Nikka have been convicted under Sections 447, 323, 325 and 148, RPC and sentenced to pay a fine of Rs. 500 on each count and in default

whereof to undergo simple imprisonment for one month on each count. Appellants Varid Bakashi, Binia Meen, Lal Hussain and Kachha, have

been sentenced to undergo rigorous imprisonment for. six months each and to pay a fine of Rs. 500 each u/s 323, RPC and further to undergo

rigorous imprisonment for three months and to pay a fine of Rs. 500 on each count under Sections 447,323, 148, RPC and in default of payment

of fine to undergo further rigorous imprisonment for a period of one month on each count.

Brief facts of the prosecution case are: that on October 18, 1989, at about 2 p.m., Ashok Kumar victim was ploughing the land covered by

Survey No, 306 measuring 37 kanals, 12 marlas situate in village Umera (Khoon) of tehsil Ramnagar, owned and possessed by his father Nanak

Chand. The accused armed, with deadly weapons entered the said land and attacked Ashok Kumar. Accused Mohd. Shaffi inflicted assault with

Tabbar on the head of the deceased with the intention to kill him and the rest of the accused inflicted lathi blows resulting in serious injuries. On

intervention by his father Nanak Chand, Puran Chand, Parmanand, Satya Devi, Surjo and Vimla Devi, who arrived on spot of occurrence to save

Ashok Kumar, accused assaulted them also with lathis and inflicted injuries to them. Ashok Kumar was shifted to hospital where he succumbed to

his injuries. PW Nanak Chand, father of the deceased-Ashok Kumar, lodged a report in Police Station, Majalta on the same day and accordingly

a case under Sections 307/447/148/149, RPC and 4/27 of the Arms Act was registered at 3 p.m. which was subsequently converted to u/s 302,

RPC on the death of Ashok Kumar. The prosecution collected the evidence and filed challan for prosecution of the accused. The accused pleaded

not guilty and were accordingly charge-sheeted and tried.

P.W. Nanak Chand has stated in his statement that he is the owner in cultivating possession of the land under Survey No. 306. Before a month

of the occurrence he came to know from one Khem Raj that the accused-appellant Mohd. Shaffi and Mir Hussain have got the land along with

house situate in the said khasra number, entered in their names by correction of record of rights and also verified from the Patwari. He preferred an

appeal before the Assistant Commissioner, Udhampur against the correction of record in the names of the accused. He told this fact to Mohd.

Shaffi who told him that perhaps his son has got the land entered in their names. On the day of occurrence i.e., October 18, 1989, at about 2 p.m.,

he was sitting in his courtyard when Ashok Kumar-deceased and P.W. Puran Chand along with bullocks, went to the disputed land for ploughing.

After 5/10 minutes, he heard voice of Mohd. Shaffi speaking in a loud tone. When he heard the second voice, he ran towards the land and saw

that accused Mohd. Shaffi and Nikka were standing with lathis in the said land. Mohd. Shaffi was having sharp edged Tabbar and Nikka having a

lathi. He enquired from Shaffi that he had promised that he will get the record corrected and why today he has come in the land having lathi in his

hands. Thereupon Shaffi-accused told him that the land is in his name and he will not permit them to plough it. He went to PW Rameshwar Bali

and brought him on spot as the promise of correction of record of land was admitted by the accused in presence of PW Rameshwar Bali. In the

meantime, PW Hans Raj also came on spot. According to the witness, Rameshwar Bali asked Mohd. Shaffi that when he has admitted that he will

get the record corrected but instead of that why they have come with lathis today. In such moments Mohd. Shaffi whistled and 9 male and 3

female accused persons surfaced from bushes and the street and came on spot armed with lathis except female accused who were empty handed.

The accused-Mir Hussain pointed to the other accused persons that let Ashok Kumar be finished in the land. At that time deceased-Ashok Kumar

was ploughing the land. Ashok Kumar ran towards the west and hardly when he had moved 5/7 ft. away, accused Mir Hussain s/o Kalu struck a

lathi blow on his head. In the meantime Mohd. Shaffi hit him with Tabbar on his head. Ashok Kumar fell unconscious. Mir Hussain further inflicted

lathi blow on the left arm of PW Nanak Chand whereas Lal Hussain, Ali Hussain and Nikka-accused each inflicted lathi blows on the left shoulder,

waist and on legs of PW Nanak Chand. Thereafter when Mst. Satya Devi was trying to lift Ashok Kumar, accused Sadiq inflicted lathi blow on

her right arm and also other accused beat her. The accused also pelted stones on them. Ashok Kumar was taken to Majalta hospital from where

he was shifted to Jammu hospital where he died on the same day at about 3-30 p.m.

PW Puran Chand, brother of the deceased, has corroborated the statement. But, PW Rameshwar Bali has not supported the version that

Mohd. Shaffi accused had promised before him and PW Nanak Chand that he will get the record corrected and that his son had got corrected the

record in his favour.

PW Hans Raj has corroborated the statement of PW Nanak Chand, PW Om Parkash, brother of the deceased, stated that when he reached

on spot he saw Ashok Kumar lying unconscious on the ground and has narrated the incident. PW Parmanand also corroborated the statement-of

PW Nanak Chand. He was also injured by the blow of Mir Hussain while protecting Ashok Kumar,

Appreciating the evidence adduced by the prosecution, the trial Court while accepting the version, has convicted and sentenced the accused as

mentioned hereinbefore.

We have heard learned counsel for the parties and perused the record.

Shri Bakhshi, learned counsel for appellants, has raised legal points which require consideration by us. He has urged that genesis of crime has

been suppressed by the prosecution which is evident on the face of the record that Mohd. Shaffi and Mir Hussain have received serious injuries as

it is the PW Nanak Chand and other prosecution witnesses including deceased-Ashok Kumar who had attacked them and inflicted injuries in the

occurrence. The prosecution has not explained the injuries on the person of the accused which in such circumstances was obligatory for the

prosecution for making out a case free from probabilities for conviction of the accused. The trial Court has recorded erroneous rinding with regard

to the accused as the aggressor party. The land in dispute had been entered in the names of accused Mohd. Shaffi and Mir Hussain who were

recorded in the revenue record to be in possession since 1986 and it is the complainant party who had trespassed into the land and attacked the

appellant.

While appreciating the statements of the prosecution witnesses and documentary evidence on record it comes out that PW Lakhan Raj Patwari

has stated that since 1986 land covered under Survey No. 306 is shown in cultivating possession of Mohd. Shaffi and Mir Hussain and continued

as such till the date of occurrence which establishes that the accused Mohd. Shaffi and Mir Hussain were prima facie in lawful possession of the

land and the claim of PW Nanak Chand that they are owners and in cultivating possession of the land and in that capacity Ashok Kumar-deceased

was ploughing the land, is not proved from the record.

We shall now deal with the argument of Shri Bakhshi that the prosecution has not explained the injuries on the persons of the accused.

In the statements of accused recorded by the trial Court u/s 342, Cr. P.C. the accused have pleaded innocence except accused Mohd. Shaffi,

Binia Meen and Mir Hussain who have stated that the complainants were the aggressors. Binia Meen and Mir Hussain accused have, further stated

that when they reached on spot on hearing the voice of Mohd. Shaffi, they saw him lying on the ground. Accused Mohd. Shaffi has categorically

stated that since the year 1986 they are in cultivating possession of the land and had sown crops therein also till the date of occurrence. On the day

of occurrence, he was informed by a minor girl, Mst. Shambi D/o Mir Hussain that P.W. Nanak Chand was ploughing the land. When he went on

spot they saw 30/35 persons on spot including PWs Nanak Chand, Om Parkash, Puran Chand, Chhailo, Amar Nath, Om Parkash, Shanti,

Parmanand, Hans Raj, Girdhari Lal and Rameshwar Bali. PW Nanak Chand was ploughing the land. He enquired from him as to why he is

ploughing the land. Upon this, Nanak Chand told that 'you are asking for the land, you will also not go alive today'. In the meantime at the instance

of PW Rameshwar Bali all the above named persons attacked them. PW Om Parkash S/o Nanak Chand inflicted blow with Tabbar on the head

of Mohd. Shaffi and others beat him with lathis. Mir Hussain S/o Haji Sain and Binia Meen thereafter came on spot and wanted to save Mohd.

Shaffi. In the process PW Om Parkash inflicted Taffar blow on the head of Mir Hussain who became unconscious and fell on the ground. Binia

Meen was struck with lathi blow by PW Hans Raj. Upon their raising alarm, Hussain S/o Sain, Mst. Bano and Atru also came on spot.

Complainant party was pelting stones and in return Hussain, Atru and Bano also threw stones. After causing injuries to them complainant-party left

the spot, They were taken and admitted in the Majalta hospital where from Mohd. Shaffi and Mir Hussain were referred to District Hospital,

Udhampur. Mir Hussain in his statement has stated that he was inflicted an injury with a sharp edged Tabbar on his head by PW Parkash arid

while he was protecting his head a finger of his left hand received a cut injury. He became unconscious and fell on the ground. From Jammu

Hospital he was shifted to Kashmir Institute of Medical Sciences, Srinagar (SKIMS). He remained under treatment in Jammu hospital for about 10

days and in SKIMS, Srinagar for over a month from where he was brought by the police for production of challan. He has produced the medical

evidence with regard to his indoor treatment in the hospitals which has been brought on record. They had also lodged a report with the police u/s

307, RPC which was registered as FIR No. 40/89.

PW Dr. A.K. Gupta, has examined the accused Mir Hussain and found the following injuries on his person :

Lacerated wound on scalp 4 cm. x 0.5 cm x 0.5 cm.

Lacerated wound on left index finger.

Fragment of bone protruding out of the fracture site at the left little finger.

Dr. Paropkar Singh, PW has also made a statement that he examined Mir Hussain who was not fit to make a statement on 19-10-1989 being

unconscious when brought to the hospital. Mir Hussain had developed weakness on the left side of his body which is revealed after examination by

the doctor and this weakness, according to the doctor, could be paralysis because of head injury. He also examined Mohd. Shaffi and referred him

to District. Hospital, Udhampur, who had a history of loss of conscience, bleeding from nostrils and mouth. He also examined Binia Meen s/o

Sadiq and found a case of head injury and history of loss of conscience and vomiting.

Looking to the medical evidence it is apparent that both the parties have been injured in the same occurrence on 18-10-1989. If it is so,

certainly the prosecution should have explained the whole incident as to how the injuries have been caused on the person of these three accused-

appellants. Non-explanation of the injuries amounts to suppression of the genesis of the crime.

Viewed with this angle also whether the prosecution story can be believed or not and whether it is necessary for the prosecution to explain the

injuries on the person of the accused which are not scratches or simple wounds, the law on the point is suggestive that it is not always necessary for

the prosecution to explain the injuries. However, injuries which are vital in nature and are caused in the same incident unless there is cogent and

clear evidence otherwise, need to be explained by the prosecution. The injuries of the type which are grievous in nature and have been caused on

the head of the three accused, a vital part of the body, cannot be lost sight of while appreciating the prosecution case. Mir Hussain accused has

remained in hospital for over 40 days and Mohd. Shaffi was also hospitalised. Binia Meen has also been injured and was too a case of head injury.

While examining the legal posit ion on this point, reference can be made to the judgments of this Court as well as of the Supreme Court.

In case Lakshmi Singh and Others Vs. State of Bihar, , the Supreme Court laid down that (at page 1742 of Cri LJ) :

In a murder case, the 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 from which the Court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore,

their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on

the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the

evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the

prosecution one...there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This

principle would obviously apply to cases where the injuries sustained by the 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 effect of the omission on the part

of the prosecution to explain the injuries....

In Hare Krishna Singh and Others Vs. State of Bihar, the Apex Court held (at page 930 of Cri LJ):

The obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In

other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden

of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to

prove the guilt of the accused beyond all reasonable doubts, if the witnesses examined on behalf of the prosecution are believed by the Court in

proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the

accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case

beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been

inflicted on the person of the accused.

In Baldev Singh and Others Vs. The State, a Division Bench of this Court held as under (at page 1094 of Cri LJ):

It is true that failure on the part of prosecution to explain injuries sustained by the accused during the occurrence is not always fatal to the case, but

where the accused pleads that he was not the offender but was himself a victim of offence failure on the part of the prosecution to explain the

injuries on his person or giving a false explanation in regard to such injuries will surely make its case doubtful, the only beneficiary in such an event

being the accused.

Where neither the prosecution nor the defence has come forward with a true version of the occurrence, and the Court is consequently unable to

say as to how the fight originated and which out of the two parties was the aggressor, the accused shall be entitled to acquittal.

In Purshottam and Another Vs. State of Madhya Pradesh, it was held (at page 1300 of Cri LJ):

Where the Medical Officer who had performed the post-mortem examination gave clear, irrefutable reasons founded on physical facts noted by

him at the autopsy in support of his firm opinion that the only external injury found on the body of the deceased could not be the result of two

simultaneous blows, and, in the ordinary course of human events and experience also, it was extremely improbable, that three blows simultaneously

given by three different persons from different directions with sharp-edged weapon would land with such precision and exactitude so as to cause a

single wound of such clean-cut margins and such dimensions and other characteristics as those of the external wound found by the Medical Officer

on the head of the deceased, the version of PW 1 and PW 2, the alleged eye-witnesses regarding the injury of the deceased being the result of

three separate blows, was inherently improbable and intrinsically incredible and it could not be accepted in preference to the evidence of the

Medical Expert....

In Seriyal Udayar Vs. State of Tamil Nadu, it was held (at page 1061 of Cri LJ):

Where though the right of private defence of the accused-appellant was not established still the material produced in cross-examination and

circumstances indicated that the incident might have happened in a manner in which it was suggested by the accused-appellant...in this view of the

matter it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt....

In State of U.P. Vs. Madan Mohan and Others, the Apex Court opined (at page 1488 of Cri LJ):

There is an additional circumstance which, says the High Court, adds to the doubts already staled. The respondent-Chander Mohan had suffered a

cut injury on his thigh. He had immediately gone to the Police Station with the bleeding injury. The Investigating Officer admits his presence at the

Police Station at about 7-45 p.m. It is also not disputed that respondent-Chander Mohan had lodged a complaint giving his own version regarding

the incident. It is, therefore, clear from the evidence that respondent-Chander Mohan had reached the Police Station promptly after the incident.

The trial Court did not attach sufficient importance of this fact and conjectured thus :

It is quite possible that accused-Chandra Mohan might have managed to suffer a slight cut in his thigh either by self-inflicting it or through a friendly

hand to lend support to a counter version of the incident which he reported at the police station at 8-30 p.m.

The High Court rightly points out that there is no basis for this inference. The time 8-30 p.m. is not correct because even according to P. W. 7 he

had seen the said accused at the police station at 7-45 p.m. P.W. 1 and P.W. 2 have not explained the injury on the thigh of Chander Mohan. As

pointed out earlier the deceased-Satya Narain has not assigned any role to Chander Mohan in his dying declaration. In these circumstances, the

High Court was justified in taking the view that the inability of PW. 1 and PW. 2 to explain the injury to Chander Mohan adds to the doubts

regarding their claim to have seen the incident. To top it all the prosecution has suppressed the genesis of the crime.

In Makwana Takhat Singh Ratan Singh Vs. State of Gujarat, , it was observed (at page 3597 of Cri LJ):

...What all the High Court has stated is that it is the accused alone who chased the deceased and inflicted the injury with dharia. But what we have

to see in a case of this nature is whether the prosecution has come out with the true story of the genesis of the occurrence. To decide as to who

was the aggressor this becomes necessary, particularly when the accused had come forward with a plea that the prosecution party was the

aggressor. The fact that some incised injuries were found on one of the accused itself shows that one of the members of the prosecution party used

the sharp-edged weapon. There is also no material to show at what stage of the occurrence the appellant, A-l came to attack the deceased. No

doubt some of the prosecution witnesses are also injured but likewise some of the accused persons also received injuries. In this state of affairs, the

view taken by the trial Court that the accused party acted in exercise of right of private defence is not unreasonable as to warrant interference in an

appeal against acquittal....

Examining the evidence of the case with reference to the law referred to above, it is evident that the injuries on the person of the accused

Mohd. Shaffi and Mir Hussain are serious in nature and on vital part of the body caused in the same incident and no explanation has been tendered

by the prosecution for such injuries. No doubt, it is not the obligation of the prosecution to explain the minor, superfluous or self-inflicted injuries,

however, looking to the medical evidence and nature of the case these injuries cannot he called simple, superfluous or self-inflicted. The accused

Mohd. Shaffi arid Mir Hussain were hospitalised. Mir Hussain remained in hospital for over 40 days. There is also a counter-case registered u/s

307, RPC vide FIR No. 40 of 1989 in the same police station. The occurrence as projected by these accused persons in their statements u/s 342,

Cr. P.C. also cannot be ignored. The possession of the land has been; proved to be of the accused and not of the complainants. The non-

explanation of the injuries on the vital part of the body of the accused, on the! part of prosecution, casts a doubt on the prosecution story and

suggests suppression of genesis of the crime. It is not discernible from this evidence as to who either of the parties was aggressor and which party

acted in exercise of right of private defence or exceeded it. The facts of the case are mixed with truth and falsehood and it is unsafe to believe the

version of the prosecution and reject the plea of the accused that they are not the offenders but victim of offence in the hands of the complainant

party. In this case neither the prosecution nor the defence has come forward with the true version of occurrence. The evidence is not inspiring

confidence or trustworthy and the injuries of the nature received by above three accused are not explained which has rendered the version of the

prosecution doubtful. Consequential effect thereof is that the accused are entitled to the benefit of doubt.

For the aforesaid reasons, the appeal is allowed and giving the benefit of doubt to the appellants, they are acquitted of the charges. The

reference made by the learned Addl. Sessions Judge is rejected. Appellants 1 and 2 be set at liberty forthwith. Bail bonds in respect of other

accused appellants, who are on bail, shall stand cancelled.