Mohammad Shafi vs Baru & Ors.

P. K. Jain, J.—This revision is directed against the judgment and order dt. 8694 passed by Sri J. S. Yadav HI Additional Assistant Sessions Judge, Rookee, Saharanpur, in Sessions Trial No. 309 of 1981 State v. Baru and others under Sees. 147,148,307,324 & 325, IPC P.S. Roorkee, Saharanpur (now district Haridwar) acquitting the accused opposite parties of the charges under the aforesaid sections.

The incident is said to have occurred on 17281 at 1.00 p.m. in Sandhori, a hamlet of village Jaurasi, within the local limits of Police Station Roorkee. The complainant''s party comprising of Kalian, Maqsood S/o Kalian and Ali Hasan brother of Kalian and the accused persons, Kura, Baru, Mustquim, Saleem, Barkat and Iqbal have their fields adjacent to each other in Sandhori. On the date of incident Maqsood, Kalian and Ali Hasan were busy in their field in doing some earth work. Accused persons among whom Kura was armed with a Tabal and rests with Lathis, arrived at the scene of occurrence and started showering abuses upon the complainant''s party. On the exhortation of Kura, the accused persons started assaulting complainant''s party. Kura gave Tabal blow on the head of Kalian and the remaining accused persons assaulted complainant''s party with lathis. Witnesses Safi, Hanif, Jinda and Shaukat etc. were attracted to the scene of occurrence. It is alleged that Maqsood and others had used phavra (spade) in their selfdefence. According to the first information report Kalian, Maqsood and Ali Hasan had received injuries. They were taken to Manglore hospital where they were medically examined. Thereafter, written report (Ex. Ka1) was got scribed by Safi (PW1) and was sent to the Police Station, Roorkee through one Tahir alongwith medical examination report. On the basis of this report a case under Sections 147/323/324, IPC was registered.

The injured were medically examined by PW8 Dr. N. D. Arora, the then Medical Officer, Manglore Dispensary, between 3.00 p.m. and 4.00 p.m. Following injuries were found on the person of each of the injured.

KALIAN

(1) Incised wound on the scalp 6 cm x 5 cm x 2 cm bone deep. Profuse bleeding taking place. The injury was in the middle of scalp, 14 cm away from left ear.

(2) Contusion on the abdomen running oblique on right chest 17 cm x 5 cm away from right nipple 14 cm above and 2 cm away from naval to right side.

(3) Contusion on left thigh front side above knee joint 6 cm x 2 cm x obliquely running, diffuse swelling. Marked tenderness. Bone impaired. Shaft of femur fracture. Advised X'' Ray.

(4) Contusion of left thigh front side obliquely running downwards 9 cm x 2.14 cm away from left knee joint.

(5) Complains of pain in the abdomen. General condition is low.

In the opinion of the doctor all the injuries were fresh. Injury No. 1 was simple and caused by sharp edged weapon but kept under observation. Rest injuries were caused by blunt weapon. Injuries Nos. 3 and 4 also kept under observation.

ALI HASAN

(1) Lacerated wound, scalp left side 4 cm x 5 cm on right side running anterior to posterior 9 cm away from right pinna. Blood is oozing.

(2) Contusion on the left shoulder superior surface 6 cm x 5 cm front backward 5 cm away from left shoulder joint.

(3) Abrasion right scapular region 4 cm x 1 cm above downward 11 cm away from right shoulder joint.

(4) Scratch mark on right scapular region 2 cm x 2 cm above downward 2 cm away to right side injury No. 3.

(5) Swelling on the right forearm 2 cm x 2 cm above lacerated wound on dorsum of the hand 5 cm away from right wrist joint with suspected fracture of radius and plan. Advised X''ray.

(6) Contusion on the right thigh front from above downwards 1 cm x 2 cm, 16 cm away from right knee joint.

All the injuries were fresh. Injury No. 3 was caused by blunt weapon. Injury No. 5 was kept under observation.

MAQSOOD

(1) Diffuse swelling on the right shoulder.

(2) Abrasion 5 cm x 3 cm on the surface of right dorsum. Base of right little finger 1 cm away.

(3) Abrasion 3 cm x 3 cm base of right ring finger.

Injury No. 1 was caused by blunt weapon. Injuries Nos. 2 and 3 were caused by nailscratches.

X''ray report of Ali Hasan disclosed fracture of ulna at lower part X''ray report was submitted by PW5 Dr. U.C. Agrawal, a private Practitioner.

During investigation the Investigating Officer visited the scene of occurrence and interrogated the witnesses of occurrence and after usual compliance of the formalities submitted chargesheet against the accused persons.

The trial Court framed charges against all the accused persons under Sections 147, 307, 325, 323/149 and 324/149, IPC. Accused Kura was further charged under Section 148, IPC.

The accused persons denied the charges framed against them and claimed to be tried.

In their statements under Section 313, Cr PC the accused persons denied the prosecution allegations. Accused Kura stated that a false report was lodged in order to escape punishment from the case registered on his report. He stated that on the same date complainantparty had assaulted him and his brother. They sustained injuries and a crosscase was pending.

In support of the prosecution case, in all, eight witnesses were examined. PW1 Mohd. Shafi is an eyewitness as well as first informant, PW2 Maqsood and PW3 Kalian are injured witnesses. PW4 H.C. Mange Singh was Head Moharrir and had scribed the chick report as well as the relevant G.D. entry. He had also proved cross report lodged Baru, copy of which is Ex. Kha2, as well as G.D. entry copy of which is Ex. Kha1. PW5 Dr. U. N. Agrawal and PW8, Dr. N. D. Arora are medical officers who had X''rayed and medically examined the injuries of the victims. PW6 S.I. Bhullan Singh is the Investigating Officer and PW7 S.I. Lakhpat Singh is also Investigating Officer who had done part of the investigation.

Besides proving Exs. Kha1 and Kha2 the defence also filed certified copies of the statements of Dr. Ahmed Wali Khan and Dr. U. C. Agrawal in STNo. 310 of 1981 and copies of the medical examination reports, Exs. Kha3 to Kha5 of accused Baru along with supplementary report.

On a consideration of the entire evidence the trial Court disbelieved the prosecution case on grounds that there was no immediate cause for the ace to assault the complainantparty; that there was inordinate delay in lodging the first information report for which no plausible explanation was furnished that the presence of PW1 was doubtful and further that independent witnesses, although available, were not examined and lastly that the defence version was supported PW7.

Hearing of the revision was adjourned several times on grounds of illness of Sri H. N. Sharma, the learned Counsel for the revisionist. The case was fixed for hearing on 221097 on which date again an illness slip was sent and none appeared to press the revision petition. On behalf of the opposite parties No. 1 to 6 also none appeared to argue the revision. Therefore, the Court heard learned Additional Government Advocate and also perused the material on record.

From perusal of the memo of revision it appears that the impugned judgment and order was being challenged on the ground that the fading of the trial Court that delay in lodging the report was not explained, is perverse and against the weight of evidence on record that the trial Court has misread the evidence on record and has wrongly disbelieved the prosecution witnesses and lastly that the court has not considered the material on record while holding that the defence case was supported by PW7.

As has already been pointed out earlier the incident had occurred on 17281 at 1.00 p.m. and the first information report was registered at Police Station Roorkee the same day at 8.20 p.m. PW1 is the first informant. In his deposition in the Court he has stated that he had taken the victims to Landora hospital where accused persons were present from before. Apprehending some untoward incident he left Landora hospital and took the victims to Manglore hospital. He got the victims medically exmained at Manglore Hospital. The Doctor at Manglore and advised that Kalian be taken to Roorkee hospital. He has also stated that when Kalian was taken to Roorkee hospital, the Doctor was not available there and, therefore, he against went to Manglore hospital where Kalian was admitted to receive treatment. The witness has further stated that no rickshaw was available for Roorkee and rickshaw for Manglore was available and, therefore, he had proceeded to Manglore. He got the first information report scribed and on reaching Roorkee at about 7.30 p.m. he sent Tahir to Roorkee Police Station for lodging the first information report. On perusal of the medical examination reports Exs. Ka11 and Ka12 it will appear that the three victims were medically examined between 3.00 pm. to 4.00 p.m. by PW8 Dr. N. D. Arora. Defence has not challenged the statement of PW1 by giving specific suggestions. The only suggestion given is that since Kalian''s ''Samdhi'' at Manglore had good relations with the doctor and for this reason the victims were taken to Manglore hospital which suggestion has been denied by PW1. It is also suggested to the prosecution witnesses that no injury was sustained by the victims on prosecution side and false medical examination reports were obtained to support the case of the prosecution. PW8 Dr. N. D. Arora, had medically examined the victims and had proved their injuries. There is no suggestion to this witness that he had intimate relations with the ''Samdhi'' of Maqsood and the victims did not have any injury on their persons and false medical examination reports were prepared by him. The statement of PW1 that accused party was present at Landora hospital when the first informant and the victims reached there is not challenged during crossexamination. Medical examination reports Exs. Kha3 and Kha5 show that Baru was medically examined at Landora hospital at 1.50 p.m. and Kare was medically examined at 3.5 p.m. These reports corroborate the statement of PW1 that the accused party was there at Landhora hospital between 1.50 p.m. to 3.50 p.m. These facts have not been taken into consideration by the trial Court while arriving at a finding that the report was delayed and no plausible explanation was being furnished by the prosecution. The trial Court in its judgment observed that admittedly Kalian was taken to Roorkee hospital and had passed from in front of the Roorkee Police Station while returning back to Manglore but no report was lodged. There was Police Station in Manglore also where the report could be lodged but no explanation has been furnished why no report was lodged at the Manglore Police Station and thus no plausible explanation is being furnished by the prosecution for delay in lodging the first information report.

The trial Court has failed to take notice of the fact that the condition of Kalian was low as stated in the medical examination report, Ex. Ka11. In such a situation the prime concern of the relations of victims as well as their wellwishers would have been to save the life of the victims and not to rush to the Police Station to lodge the first information report. The statement of the complainant, in the circumstances, which has not been challenged in crossexamination and to some extent is corroborated by other material on record, shows that the victims who were first taken to Landhora and thereafter to Manglore where they were medically examined between 3.00 to 4.00 p.m. and thereafter Kalian was taken from Manglore to Roorkee hospital and when the doctor at Roorkee was not available he was again taken back to Manglore where he was admitted for treatment. This must have taken sufficient time and the statement of PW1 that they reached Roorkee at about 7.30 p.m. cannot be said to be a false statement. In between this period the first information report, Ex. Ka1, was also got scribed by PW1 in which also at least 2030 minutes'' time must have been spent. One of the reasons given by the trial Court for arriving at its conclusion is that none of the victims went to the Police Station Roorkee to lodge the first information report. It is evident that both sides had sustained injuries and the complainant party could have very well foreseen that the accused party may also have lodged the first information report. Although there is no crossexamination from PW1 as to why report was not lodged when Kalian was taken to Roorkee hospital, yet this may be a reason for the first informant and other injured witnesses who must have been apprehending that their names may figure as accused in the first information report lodged on behalf of the accused persons. Fearing their arrest, in case they visited Roorkee Police Station, they might have refrained from going to Roorkee Police Station. In any case there is no crossexamination eliciting explanation for not going to Roorkee Police Station. The defence could not have taken advantage of it. In the circumstances since Kalian was having serious injuries and his condition was low, the prime concern of the first informant and other witnesses was to got proper medical treatment of Kalian. As soon as Kalian was admitted in Manglore hospital, the first informant thought of sending Tahir to Roorkee Police Station to lodge the first information report along with the medical examination reports. The trial Court failed to take notice of all these facts. No question is put to PW1 as to why not report was lodged at P.S. Manglore. In case of being crossexamined on this point, he might have furnished explanation. However, one circumstance which cannot be forgotten is that the incident occurred within the local limits of Police Station Roorkee. The complainant''s party might have thought it proper to lodge the first information report at Police Station Roorkee instead of at Police Station Manglore. In any case no explanation was elicited from the prosecution witnesses as to why the report was not lodged at Police Station Manglore, no adverse inference can be drawn against the prosecution. The trial Court has also referred to some minor contradictions in the testimony of the prosecution witnesses which have no bearing so far as the question of late lodging of the first information report is concerned. The finding of the trial Court that the first information report was lodged with unexplained undue delay is thus perverse and is arrived at without considering the entire material on record.

There is substance in the revisionist''s claim that there has been misreadings of the evidence by the trial Court which have resulted in failure of justice. The trial Judge cannot be a silent spectator when the prosecution witnesses are being examined and crossexamined. The Court relied upon statement of PW7 S.I. Lakhpat Singh who had visited the scene of occurrence on 18281 and had prepared siteplan Ex. Ka9. The defence case is that the complainantparty had broken the Mend of the accusedparty and then the accusedparty complained about it. The complainant party started assaulting the accusedparty. To support their version the accused persons crossexamined PW7 and brought on record his admission that on visiting the scene of occurrence he had found the Mend in between the fields of Kalian and accused persons broken. The trial Court has failed to take notice of the fact that the statement of S.I., Lakhpat Singh was recorded on 111083 whereas he had visited the scene of occurrence on 18281. He had prepared siteplan (Ex. Ka9) which was prepared by him at the earliest occasion. In this document there is absolutely no mention about the Mend having been found to be broken. On the other hand, on the eastern side in the field of complainant Kalian the witness had found earth work about which there is mention in the siteplan (Ex. Ka 9). The trial Court failed to take notice of the fact that the admission of PW7 during crossexamination is not corroborated by the earliest statement contained in Ex. Ka9. PW6 S.I. Bhullan Singh had again inspected the scene of occurrence on 26281 and had prepared siteplan (Ex. Ka5). There is no suggestion to this witness that the Mend of the accused persons was found to be broken. On the other hand, this witness, in the site plan (Ex. Ka5), has made a mention that the earth work in the field of Kalian was found to be contiguous to the Mend of the field of the accused persons. He has also made a mention that there is no sign of cutting the Mend. On the other hand, some earth from the Mend appears to have been removed. No crossexamination is directed against these observations in siteplan. All these circumstances were not taken into consideration by the trial Court while appreciating the evidence of the parties and considering the admission of PW7. This has also influenced the finding of the trial Court with regard to the truthfulness or otherwise of the prosecution version and correctness of the defence version. Similarly the trial Court, in its judgment, observed that the Presiding Judge himself inspected the scene of occurrence and found that the field of PW1 Mohd. Safi was at a distance of one furlong from the field of the complainant. There is on record the inspection note, paper No. 54/A. There is absolutely no mention of having seen the field of Mohd. Safi. Even in the map prepared by the Presiding Officer, field of Mohd. Safi is not shown, still the learned Presiding Judge observed in the judgment that Mohd. Safi''s field was situated one furlong away from the field of the accused persons. Such observation appears to have been made with a view that from such a distance the witness might not have been able to see the incident. In any case such observations have been made in the judgment by the learned trial Judge without there being any material on record.

The learned trial Judge has doubted the presence of PW1 at the scene of occurrence on conjectures and surmises only and without carefully examining the evidence on record. PW1 claims that he has a field in village Suniyara. There is no denial of this fact nor there is suggestion contradicting this version of PW1. On the other hand, during crossexamination it is suggested to this witness that the land in village Suniyara owned and possessed by him, is in joint Khata with Nazir and this Nazir is real cousin brother of his father. Nazir is son of Ali Hasan. This is also admitted. The trial Court has also failed to take notice of the fact that the defence has not disputed the presence of Mohd. Safi. On the other hand, the medical examination report of Maqsood shows that he was taken to the hospital by Safi s/o Maru i.e. PW1 although the other injured are shown to have been taken by Razi Hasan s/o Rahim Bux. There is no suggestion to PW1 that he was not present at the scene of occurrence. The testimony of this witness cannot be disbelieved on the ground that he was an interested witness, being closely related to the accused persons and having appeared or was cited as a witness for the complainantparty in some other case. Relationship or interestedness of a witness can never be a ground to outright discredit his testimony. In the case of such a witness the duty of the Court is to scrutinize the statement more carefully and then come to a finding if the witness is reliable witness or not and his evidence is worth credence or not. This has not been done by the trial Court and evidence of PW1 has been discarded on flimsy grounds.

PW2 and PW3 are injured witnesses. Their presence cannot be disbelieved. Their evidence cannot be disbelieved on the ground that they did not prefer to lodge the first information report or that there were minor contradictions in their evidence. The court below has also failed to take into consideration that from the very beginning the prosecution has come up with a case that some of the victims used spade (Phawra) in their selfdefence and thereby explained the injuries of the accused persons. The trial Court has not at all considered if the explanation of the injuries of the accused furnished by the prosecution witnesses was plausible and believable or not.

The trial Court also observed that despite independent witnesses being available, none was produced by the prosecution. This also cannot be a ground to throw away the case of the prosecution. It is now wellknown that independent witnesses hardly come forward to depose in favour of or against the contesting parties in a criminal case specially where several criminal litigations are going on between the parties. In the instant case it is admitted fact that there were some more criminal cases going on between the parties. No independent witness, in the circumstances, will involve himself to have wrath of one or the other party by deposing in favour of one and against the other party. The law in this regard is settled that the evidence of the prosecution witnesses cannot be discarded on the ground that independent witnesses are not examined by the prosecution. Again where no independent witness is examined, the Court is called upon to scrutinize the evidence with greater care and caution and arrive at a finding if the prosecution evidence is reliable or not. This has not been fairly done by the trial Court.

In view of the foregoing discussions I am of the view that the findings arrived at by the trial Court are based upon misreading of evidence and nonconsideration of material facts and circumstances. Some of the findings are based upon conjectures and surmises and thus the findings on fact are perverse. The trial Court''s judgment, therefore, cannot be sustained.

The revision is allowed, Judgment and order of the trial Court is set aside and the case is sent back for decision afresh after hearing the parties.

Revision allowed.