Mohd. Issa and Others (In Jail) vs State of U.P.

N.S. Gupta, J.—This criminal appeal is directed against the judgment and order of conviction dated 18.3.1980 passed by Sri M. L. Singhal, the then Vth Additional District and Sessions Judge, Allahabad, convicting the accused-Appellants u/s 302/325, I.P.C. read with Section 34, I.P.C. and sentencing each of them to life imprisonment u/s 302, I.P.C. and two years R.I. u/s 325, I.P.C. Both the sentences were directed to run concurrently.

The prosecution story, briefly stated, is as follows :

The complainant Smt. Kalimunissa and the accused-Appellants are all resident of village Gaudiyani, P. S. Mau Aima, district Allahabad. The prosecution claimed that the accused-Appellants Mohd. Issa and Mohd. Idris are real brothers. They and accused-Appellant Garib are friends of Ram Sajiwan. Ram Sajiwan bore enmity against the complainant Smt. Kalimunissa and her husband. There was a litigation in between the complainant''s husband Bakridi and the accused-Appellant Ram Sajiwan over an agricultural plot situate in village Gaudiyani P. S. Mau Aima, district Allahabad.

On 20.1.1977, at about 4 p.m., the complainant Smt. Kalimunissa P.W. 1, her daughter deceased Bakridan and minor son Khalil went to the said field for digging out potato crop. There Mohd. Issa duly armed with farsa, Mohd. Idris alias Chammar armed with spear, Garib armed with spear and Ram Sajiwan armed with Lathi appeared. Accused Ram Sajiwan exhorted that Smt. Kalimunissa and Bakridan be killed as they would otherwise not leave the possession of the field in question easily. Thereupon all the four accused-Appellants paunched upon Bakridan deceased and assaulted her by means of their respective weapons. When the complainant Kalimunissa tried to save her daughter Bakridan, she was also assaulted by the accused-Appellants. The complainant raised alarm and attracted Bhaiyaram and Nazimuddin P.W. 4 and other inhabitants of the village. The accused-Appellants then ran away.

The complainant Kalimunissa went to police station Mau Aima at 8.15 p.m. and lodged an oral report Ex. Ka-1 about the occurrence of this case.

S. I. Raghuraj Singh P.W. 8 who was then working as Station Officer of P.S. Mau Aima immediately took up the investigation of the case in his hand. He recorded the statements of Smt. Kalimunissa and her son Khalil and rushed to the scene of occurrence right in the night of the occurrence. He searched out the accused-Appellants but they were not available. On the morning of 20.1.1977, he conducted inquest in respect of the dead body of the deceased, Bakridan and sent the same for post-mortem examination through constable Abdul Latif P.W. 6.

Smt. Kalimunissa was medically examined by Dr. A. P. Bajpai P.W. 5 and about 4.30 a.m. on 20.1.77. He found the following injuries on her person :

(1) Traumatic swelling 15 cm. ? 7 cm. on the out side of left arm.

(2) Lacerated wound 1.5 cm. 0.3 cm. skin on the lateral side of left arm 8.5 cm. above the elbow joint.

(3) Lacerated wound 1 cm. 0.4 cm. on the lower end posterior side of left forearm.

(4) Traumatic swelling 5 cm. 4 cm. on the posterior side lower end of left forearm covering the injury No. 3.

(5) Traumatic swelling 6 cm. 4.5 cm. in the upper part of dorsum of left hand.

(6) Traumatic swelling 23 cm. 7 cm. in the lateral side of lower 2/3rd of right leg.

(7) Complaint of pain on the right forearm.

In the opinion of the doctor, all the injuries were more than half day old, caused by some blunt weapon.

Autopsy on the dead body of the deceased was conducted by Dr. R. P. Singh P.W. 7 on 21.1.77 at 3.20 p.m. who found the position as under:

The deceased had died about one day back. She was aged about 26 years. Her body was well built. The eyes were closed. The mouth was partly opened. Blood-stained fluids was coming out from both the nostrils. Rigor mortis was present. The abdomen was distended. The doctor found the following ante mortem injuries on the person of the deceased :

(1) Lacerated wound 2" ? 1/2" ? scalp deep over right head temporal.

(2) Lacerated wound 4" 2" bone deep on left side.

(3) Contusion 4" 1" on the left back upper part.

(4) Contusion 6" 1" on the left back upper part just below injury No. 3.

(5) Contusion 5" 4" on the left side back middle outer part.

(6) Contusion 6" 2" left buttack outer part.

(7) Contusion 4" 1" on the outer end middle of left forearm.

(8) Lacerated wound 3/4" 1/4" bone deep on the lower and outer part of right leg with fracture of both bone underneath.

Dr. Singh found that the brain as congested with multiple hematoma. We opined that the deceased had died due to shock and coma as a result of injuries to the brain.

After committal of the case, the case came up for trial before the learned Vth Additional District and Sessions Judge, Allahabad who framed charges u/s 302/325/34, I.P.C. against the accused-Appellants.

The accused-Appellants pleaded ''not guilty'' and claimed trial. They denied to have participated in the occurrence in question and maintained that they have been falsely implicated into the case due to enmity. The accused-Appellants did not adduce any evidence in their defence.

The prosecution examined as many as 8 witnesses out of whom Smt. Kalimunissa P.W. 1 was the injured eye-witness of the occurrence, P.W. 2 Khalil was the minor son of the complainant who was aged about 11-12 years on the date of his giving evidence before the Court below on 12.9.1979. He too has given eye-witness account of the occurrence P.W. 4 Nizamuddin is resident of a nearby village Mahrauta. He too has given an eye-witness account of the occurrence. P.W. 3 Head Constable Chandra Shekhar was a formal witness who proved Chik report and G. D. report P.W. 6 Abdul Latif took away the dead body of the deceased for post-mortem examination. P.W. 5 Dr. A. P. Bajpai had examined the injured Smt. Kalimunissa. P.W. 7 Dr. B. P. Singh conducted autopsy on the dead body of the deceased. P.W. 8 S. I. Raghuraj Singh was the Investigating Officer.

The learned trial court placing reliance upon the ocular evidence of the witnesses of fact convicted and sentenced the accused-Appellants as aforesaid ; hence this appeal.

We have heard Sri P. N. Misra, learned Senior Counsel for the accused-Appellants and Sri K. C. Saxena, learned A. G. A. for the State, considered their submissions and have gone through the facts and circumstances of the case.

Accused-Appellants--Mohd. Issa, Mohd. Idris and Garib.

It is fully established from the medical evidence of Dr. B. P. Singh P.W. 7, who conducted autopsy on the dead body of the deceased on 21.7.77 at about 3.20 p.m. and had found a number of lacerated wound and contusions over the dead body of the deceased Bakridan that the deceased should have died because of the said injuries on 20.1.1977 at about 4 p.m. He further opined that the said injuries were sufficient in the ordinary course of nature to cause death. Although he opined that all the injuries found on the person of the deceased appear to have been caused by some blunt object but he maintained that Farsa if used from blunt side and Ballam if used like lathi could have caused the injuries found on the person of the deceased as ante-mortem injuries.

Similarly Dr. A. P. Bajpai, P.W. 5 who had medically examined the injuries of Smt. Kalimunissa and found a number of lacerated wounds and traumatic swellings on her person clearly pointed out that the said injuries could have been caused to her on 20.1.1977 at about 4.00 p.m. the date and time of the occurrence as suggested by the prosecution by means of blunt weapon like lathi. He had advised X-ray in respect of the injury Nos. 1 and 4 and proved the X-ray examination report of the Radiologist Ext. Ka-4 which showed that there was a fracture in both these injuries.

Thus, it stands fully established from the medical evidence on record that the deceased Bakridan and injured Smt. Kalimunissa had sustained a number of simple and grievous injuries which were found on their respective persons on the date and time of the occurrence as stated by Smt. Kalimunissa, P.W. 1 who is an injured eye-witness of the occurrence and mother of the deceased.

Now the pertinent question which arises for consideration before this Court is to see as to whether all the accused-Appellants were responsible for causing the said injuries or only some of them or one of them was responsible for causing the said injuries. According to the averments of the first information report as also the averments of Smt. Kalimunissa P.W. 1 Khalil, P.W. 2 and Nizamuddin P.W. 4, accused Mohd. Issa was armed with Farsa, Mohd. Idris and Garib were armed with spears and that they assaulted Smt. Kalimunissa and her daughter deceased Bakridan by means of their respective weapons. They stated that these four accused-Appellants did so on the exhortation of Ram Sajiwan, the accused-Appellant, who was armed with Lathi and that Ram Sajiwan too had assaulted Smt. Kalimunissa P.W. 1 and her daughter Bakridan by means of lathi. Smt. Kalimunissa P.W. 1 further stated that her husband was fighting a case regarding the plot in question with accused-Appellant Ram Sajiwan since before the occurrence of this case. Although during the course of her cross-examination Smt. Kalimunissa stated that the accused-Appellant Ram Sajiwan used to cultivate the plot in question on Adha Batai yet it appears that on one hand Ram Sajiwan accused-Appellant was asserting his title and possession over the plot in question and on the other the complainant''s husband claimed his title and possession over the said plot. Thus, it appears that the enmity in between Ram Sajiwan and the complainant''s husband on the point of the said field gave rise to the incident of this case when the complainant Smt. Kalimunissa P.W. 1, her deceased daughter Bakridan went over the said field for removing the potato crop and in that connection assault was made upon Bakridan and Smt. Kalimunissa by the accused-Appellant Ram Sajiwan by means of lathi.

It was admitted to the complainant Smt. Kalimunissa that the accused-Appellants Mohd. Issa, Mohd. Idris were real brothers and close friends of Ram Sajiwan. Garib was also a friend of accused-Appellant Ram Sajiwan. If it was a fact that these three accused-Appellants, namely, Mohd. Issa, Mohd. Idris and Garib duly armed with farsa and spears had participated in the occurrence in question, there was no fancy for them in wielding their deadly weapons like farsa and spear from the blunt side of their weapons. Thus to us, the implication of accused Mohd. Issa, Mohd. Idris and Garib appears to be false because of their friendship with Ram Sajivan who alone had grudge against the complainant and her daughter, who had gone to remove the potato crop from the field. If it was a fact that these three accused-Appellants were really armed with Farsa and spear, and if they had really participated in the occurrence in question, the incised wounds and cut wounds should have been caused to the deceased and the complainant. The absence of such wounds falsify their participation in the occurrence, in question. They, therefore, deserve to be acquitted and the findings of fact recorded by the Court below as against these three accused-Appellants does not appear to be correct, for the simple reason that these three accused-Appellants were only friends of Ram Sajiwan and had no love lost with the deceased or the complainant. As stated above, if they would have participated in the occurrence in question with deadly weapons like Faras and spear, they could have used those weapons in true spirit and in that event should have caused cut wounds or incised wounds or penetrating wounds on the person of the deceased and the complainant.

Accused-Appellant Ram Sajiwan

Obviously Ram Sajiwan accused-Appellant was on litigating terms with the complainant''s husband over the plot, over which the deceased and the complainant had gone to remove the potato crop from the said plot. Since he was on litigating terms with regard to the possession of the said plot, it was natural for him to have not tolerated the act of the deceased and her mother Kalimunissa regarding removal of the potato crop which may not have been fully ripe at the time of the occurrence. It is probable to believe that in order to scare the complainant and her daughter from removing the potato crop, he assaulted them by means of Lathi.

Now the pertinent question which arises for our determination is to see as to what offence was really committed by the accused-Appellant Ram Sajiwan. According to the evidence of Smt. Kalimunissa P.W. 1, first of all the accused-Appellant Mohd. Issa assaulted the deceased by means of Farsa. She stated that after sustaining Farsa injuries, the deceased had fallen down and when she had fallen down, Ram Sajiwan accused-Appellant assaulted her by means of Lathi. She stated that Ram Sajiwan made two or four assaults by means of Lathi on Bakridan. She further stated that when she tried to save her daughter, the accused persons also assaulted her. She stated that all the four accused persons had assaulted her. She sustained injuries in her hand and on her entire body. She sustained Lathi injuries in her leg, so much so that she could not walk and went on Khatia to the police station. It would thus be seen that according to the statement of Smt. Kalimunissa, accused-Appellant Ram Sajiwan was not responsible of causing all the injuries which were found on the person of the deceased and because of which the deceased had ultimately died. The circumstance that he made only 2-4 assaults by means of Lathi on the person of the deceased and further assaulted the complainant by means of Lathi and caused simple and grievous hurt to her fully goes to show that the intention of the accused-Appellant Ram Sajiwan in causing the injuries to the deceased and to the complainant was not to cause death but was only to cause simple and grievous hurt to them. Thus, on the basis of the evidence of the complainant Smt. Kalimunissa, an injured eye-witness of the occurrence, whose presence on the spot is admittedly substantiated by a number of injuries found on her person, which should have been caused by means of Lathi, her presence on the spot cannot be doubted.

As regards evidence of Khalil P.W. 2, it would suffice to state that he was a child witness, who was aged about 11-12 years on 12.9.79, the date of his giving statement on oath before the Court below. He stated during the course of his cross-examination that her mother had brought him to Allahabad but he never inquired from her mother as to why he was being taken to Allahabad. He stated that on the date when he came to the witness box before the Court below, his mother and lawyer told him as to what evidence he had to give. It would thus go to show that this boy was tutored to give that version of the incident, which was tutored to him by his mother and lawyer. It is, therefore, not possible for us to place reliance upon the statement of this witness.

P.W. 4 Nizamuddin was resident of a different village Mahrauta. He was a chance witness of the case although he has stated that he had seen the Marpit himself yet he was unable to state as to whether or not Ram Sajiwan had any plot. He could not state whether Ram Sajiwan was having any halwaha. When the participation of other accused-Appellants, namely, Mohd. Issa, Mohd. Idris and Garib is belied by the medical evidence on record and when this witness resides in different village, it cannot be believed that he could have seen the occurrence with his own eyes. He stated that he was having grove, etc. in village of the occurrence and when cross-examined on the point as to what occasion was for him to come to the place of occurrence, he stated that he was going to collect labourers from there. The time of the occurrence being 4 p.m., the explanation of this witness that he was coming at such an odd hour of 4.00 p.m. to the village of the occurrence for arranging labourers does not appear to be convincing one. It was suggested on behalf of the defence that this man as having illicit relations with Bakridan, the deceased, and had, therefore, come to give evidence before the Court below. That being so, it is not possible for us to place reliance on the evidence of this witness.

Thus, the only witness of fact Smt. Kalimunissa P.W. 1 remains. She having roped in as many as three other friends of Ram Sajiwan, namely, Mohd. Issa, Mohd. Idris and Garib in the occurrence of this case, she too cannot be regarded to be a wholly reliable witness. Because of the fact that she sustained injuries in the occurrence in question and those injuries were found to have been caused by means of blunt object and two of those injuries being fracture of shaft of humerous and lower end of radius and stytoid process of ulna, this witness appears to be partly reliable only to this extent that she had sustained simple and grievous injuries at the hands of accused Ram Sajiwan and that Ram Sajiwan was also responsible for causing certain injuries by means of lathi on the person of the deceased. We are thus of the opinion that an offence punishable u/s 325, I.P.C. in respect of the injuries caused by this accused-Appellant to P.W. 1 her daughter the deceased stands proved.

Sri P. N. Misra, learned Counsel for the Appellants contended as follows :

(a) That the incident in question took place during night inasmuch as the medical examination of the complainant was conducted at 4.30 a.m. on 21.1.1977.

(b) That there is conflict between medical and ocular evidence and, therefore, the ocular evidence of all the three witnesses of fact should be discarded.

(c) That according to the statement of P.W. 2 Khalil, who is son of the complainant, the potato crop in the field in question had been sown by the accused-Appellant Ram Sajiwan and, therefore, the complainant and her daughter deceased had no business to commit theft of the same. If while committing theft of the potato crop, the accused-Appellant Ram Sajiwan caused any injury, he cannot be held guilty for the murder of the deceased.

The learned Counsel for the Appellants Sri P. N. Misra relied upon the following rulings :

(1) Ramaotar v. State 1992 ACR 745, in which their Lordship of the Supreme Court had held that the injuries inflicted to the deceased with Lathi, were not caused with the sole intention to cause death and as such the conviction u/s 302, I.P.C. was not justified.

(2) In another ruling, namely, Amar Singh and Ors. v. State of Punjab 1987 CAR 109 (SC) it was held that when the evidence of the main eye-witnesses was inconsistent with the medical evidence and there was no explanation of the said inconsistency, no reliance can be placed upon the prosecution version.

(3) Another ruling relied upon by the learned Counsel for the accused-Appellants was Ugar Ahir and Others Vs. The State of Bihar, , in which their Lordship had held that the maxim falsus in uno, falsus in omnibus (false is one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous mataphor, separate the grain from the chaff. But, it cannot obviously disbelieve the sub-stratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.

(4) Similarly, in Balaka Singh v. State of Punjab 1975 AC 302, their lordship of the Supreme Court had held that it is the duty of the Court to separate truth from falsehood. It was further laid down in this ruling that the cases where the prosecution evidence so inextricably mixed up that it was not possible to sever one from the other, conviction has to be set aside.

(5) In Gurdayal Singh v. State of Punjab 1995 SCC 947, where five named persons including the Appellant before the Supreme Court had participated in the assault of which four have been acquitted, it was held by the Supreme Court that the Appellant alone could not be convicted with the aid of Section 34, I.P.C. It was further held by the Supreme Court that the Appellant was liable for his individual act only. They found that in view of the weapon used and the nature of the injuries caused, the conviction was altered from Section 302, I.P.C. to Section 326 simplicitor.

We have given our thoughtful considerations to the submissions made by Sri P. N. Misra, learned Counsel for the Appellants as also the rulings cited by him. It appears that the complainant in this case Smt. Kalimunissa was a poor and aged lady. She rushed to the police station soon after the occurrence and lodged oral report Ex. Ka-1 there at 8.15 p.m., the police station being situate at a distance of 4 miles from the place of occurrence. It was averred by constable Chandra Shekhar P.W. 3, the scribe of the first information report and G. D. report that Sub-Inspector of Police did not turn up at the police station till 12 in the night. S.I. Raghuraj Singh P.W. 8 stated that the case was registered in his absence at the police station, although he has not stated the time of his departure from the police station. Thus, the fact remains that the complainant had reached at the police station at 8 a.m. and first information report Ex. Ka.-1 was lodged there. Had it been a fact that the occurrence had taken place during night, the complainant could not have reached to the police station, particularly when she was having a number of injuries on her person just within a period of four hours. The sub-inspector of police not being present at the police station, naturally the complainant should have been referred to the medical examination after the arrival of the sub-inspector. Thus, we are of the opinion that there was no undue delay in the medical examination of the complainant and from the fact that the complainant was medically examined at 4.30 a.m. it cannot be concluded that the incident in question had taken place during night.

As discussed, we have already given the benefit of conflict between the ocular evidence and the medical evidence to as many as three accused-Appellants, namely, Mohd. Issa, Mohd. Idris and Garib.

Thus, this point needs no further elaboration.

The circumstance that the potato crop was sown in the field in question by Ram Sajiwan and the complainant and the deceased had gone to remove the same without permission of Ram Sajiwan did not entitle Ram Sajiwan to take the law in his own hand and to kill the deceased and to cause grievous hurt to the complainant Smt. Kalimunissa P.W. 1.

Thus, having the regard to the submissions made by Sri P.N. Misra, learned Counsel for the Appellant and the ratio decidendi laid down in the aforesaid rulings, particularly in the case of Ugar Ahir (supra), we have no doubt that the litigation on the point of field gave rise to the incident in question in which Ram Sajiwan assaulted the deceased and her mother Smt. Kalimunissa P.W. 1. Since he may not be having the intention to murder the deceased, yet the fact remains that the deceased had died because of the injuries inflicted upon her in which 2-4 assaults were definitely made by the accused-Appellant by means of Lathi and a number of assault were made upon her mother Smt. Kalimunissa which caused simple and grievous hurt to Smt. Kalimunissa. Thus, having regard to the fact and circumstances of the case before us, we find the accused-Appellant Ram Sajiwan guilty for committing the offence u/s 325, I.P.C. with regard to the injuries caused to the deceased Bakridan as also her mother Smt. Kalimunissa and convict him accordingly.

Thus, the appeal in so far as it relates to Appellants Mohd. Issa, Mohd. Idris and Garib is hereby allowed. Their conviction and sentence recorded by the Court below under Sections 302/325, I.P.C. and 34, I.P.C. are hereby set aside. They are on bail. They need not surrender. Their bail bonds are discharged.

The appeal in so far as it relates to accused-Appellant Ram Sajiwan is allowed in part to this extent that his conviction u/s 302, I.P.C. is altered to one u/s 325, I.P.C. and he is sentenced to undergo R.I. for a period of two years and to pay a fine of Rs. 10,000 to be paid within a period of two months from the date of this judgment, failing which R.I. for a period of one year shall be undergone by him regarding injuries caused by him to deceased Bakridan. His conviction u/s 325, I.P.C. regarding injuries caused to the complainant Smt. Kalimunissa and sentence of two years R.I. thereunder is maintained. All the sentences, shall run concurrently.

Accused-Appellant Ram Sajiwan is on bail. His bail bonds are cancelled. Let him surrender before the Court below to serve out the sentence awarded to him.

It is further directed that if the fine inflicted above is realised, one half of the said fine shall be paid to the mother of the deceased, namely, Smt. Kalimunissa as compensation.

Let the copy of this judgment along with the record of the case be sent to the Court below forthwith for needful compliance.