Mulla Alias Kalu Alias Tahir and Another vs State of U.P.

Vinod Prasad, J.—Challenged in these appeals by a quadruple Appellants Mulla alias Kalu alias Tahir (A-1), Rahis alias Baboo (A-2), Arif (A-3) and Saleem alias Pappu (A-4) are to their convictions for offences u/s 307/34, I.P.C. and 323/34, I.P.C. and imposed sentences of ten years R.I. with fine of Rs. 5,000 on each of the Appellants and in default of payment of fine to undergo 2 years further R.I. on the first count and one year R.I. on the second count recorded by Additional Sessions Judge, Court No. 2, Ghaziabad in S.T. No. 304 of 2001, State v. Mulla and Ors. connected with S.T. No. 760 of 2001, State v. Arif, both relating to P.S. Vijay Nagar, District Ghaziabad, vide impugned judgment and order dated 23.3.2006. Trial Judge has further directed that both the sentences shall run concurrently. It had further directed payment of Rs. Ten thousand as compensation to the injured Mahesh (P.W. 3). Since in all these appeals impugned judgment is one and the same hence it all are being decided by this common judgment.

Briefly stated prosecution allegations were that informant Nand Kishore P.W. 1 and all the Appellants are co-villagers being resident of village Mirzapur, P.S. Vijai Nagar, district Ghaziabad. A-3 and A-4 were eve teasers. Shakuntla and Poonam both sisters of P.W. 1 and students of Sushila School were victims of that eve teasing. To save their honour P.W. 1 had taken them to his working place at Delhi were they remained for six or seven months. During vacations all of them returned to their village to live with their parents. On 23.5.2000 when P.W. 1, his brother Mahesh (P.W. 3) were going to see off their father Chatrapal Singh (P.W. 4) and younger sister Poonam to railway station then A-3 and A-4 chased them on motor-cycle and teasing they even dashed it with Poonam side ways. After seeing off their father and sister P.W. 1 and 3 came to the house of A-2 to complain about misdemeanour conduct of A-3 and A-4 at 9 a.m. where they were threatened, abused and at the instigation of A-1 rest of Appellants A-2, A-3 and A-4 started assaulting them who both sustained injuries. A-3 caught hold of P.W. 3 and A-4 pierced knife in his chest causing extensive internal damage to his organs. After getting P.W. 3 admitted in Ganesh Hospital that P.W. 1 scribed a written report Ext. Ka-1 about the incident and then lodged it at P.S. Vijay Nagar, District Ghaziabad at 12.30 in the afternoon the same day.

H.M. Madan Singh prepared Chik F.I.R. Ext. Ka-4 and G.D. entry Ext. Ka-5. S.I. Charan Singh Yadav P.W. 6 commenced the investigation into the crime, prepared site plan Ext. Ka-6, interrogated witnesses and concluding it charge-sheeted all the accused on 12.7.2000 and 17.9.2000 vide Ext. Ka-7 and Ext. Ka-8.

P.W. 2 Dr. Umesh Madan of Ganesh Hospital medically examined injured P.W. 3 Mahesh Kumar on 23.5.2000, who was brought to him by P.W. 1 and had prepared his medical examination report Ext. Ka-2. Doctor had noted following internal and external injuries on his body:

Stab injury 3 inches x 1.5 inches x chest cavity deep on lower portion of right side chest having a cut of 2 inches through and through. Diaphragm between lung and abdomen was cut about 2 inches. Right side Liver was also cut 2 inches x 1-1/2 cm. Right side muscles in between the ribs were also cut. Because of sustained injury blood had collected on right side chest and stomach. Patient was admitted in hospital between 23.5.2000 to 1.6.2000.

According to the doctor sustained injury could have been caused at or about date and time of the incident.

Dr. Sanjay Kumar Shanker, P.W. 5, M.O., M.M.G. Hospital, Ghaziabad medically examined P.W. 1 at 1.40 p.m. same day, who was brought to him by Constable Mahesh Kumar of P.S. Vijay Nagar. Following injuries were noted by the doctor on his body:

Lacerated wound 2 x 1 c.m. x muscle deep on right forehead in V-shape with oozing of blood.

Contusion 4 c.m. x 2 c.m. on the right front of left shoulder.

Contusion 3 c.m. x 2 c.m. on back of left forearm.

Abraded contusion 7 c.m. x 3 c.m. on back of right forearm.

Abrasion 1 c.m. x 1 c.m. on dorsal of right hand.

All the injuries were fresh, simple in nature and were caused by blunt object P.W. 5 had proved medical examination report of P.W. 1 as Ext. Ka-3.

Being, charge-sheeted all accused were summoned by the Magistrate who committed their case to Session''s Court for trial on 15.3.2001 and 25.6.2001. Vth Additional Sessions Judge, Ghaziabad charged all the accused u/s 307/34 on 12.4.2002 and 1.2.2002. Since that charge was abjured by the accused trial proceeded to establish their guilt.

Prosecution examined six witnesses in all to bring home the charge, out of whom informant injured Nand Kishore P.W. 1, injured Mahesh P.W. 3 and their father Chatrapal Singh P.W. 4 were fact witnesses. Dr. Umesh Madan P.W. 2, Dr. Sanjay Kumar Shanker, P.W. 5 and Investigating Officer S.I. Charan Singh Yadav P.W. 6 were formal witnesses.

In their depositions all the fact witnesses supported prosecution version in it''s entirety. P.W. 1 testified that A-3 and A-4 used to tease his sisters on their way to school. Many a times protest was made but in vain. A-3 and A-4 had also threatened P.W. 1 with his life. Deterred by their activities P. Ws. 1 and 3 alongwith two sisters had shifted to Delhi where P.W. 1 was employed six or seven months prior to the date of the incident. P.W. 1 further stated that assault was made outside the house of the Appellants when they had gone to lodge a protest about the morning incident when A-3 and A-4 had dashed their motorcycle with Poonam while they were going to railway station. He had confirmed time, place, manner of assault and weapons used by the assailants. A-1 and A-2 had belaboured him while P.W. 3 was assaulted in his chest by A-4 when he was already encircled by A-3 causing him life threatening injury. P.W. 3 had fallen down sustaining that injury and therefore assailants had escaped from the spot. P.W. 1 further testified that he had sustained lacerated wound on his head and after the incident he had transported P.W. 3 firstly to the police station and then to Khatri Nursing Home, where his admission was declined and therefore was carried to Ganesh Hospital where he was admitted. Subsequent to his hospitalisation that P.W. 1 had scribed and had lodged his F.I.R. and thereafter police had got him medically examined.

This witness had been subjected to searching cross-examination during which he had deposed that they had started for railway station at a distance of two and a half kilometres at 8.30 a.m. and A-3 and A-4 had chased them on their motor-cycle from Samrat Chowk and it was near Devi temple that they had dashed it with his sister but they could not be apprehended because they speeded their motor-cycle away. His father had to join his duty, therefore, alongwith his sister had left for Delhi. From station it took ten or fifteen minutes to them to reach place of incident on a rickshaw. This witness had emphatically denied defence suggestion that they had assaulted Appellants inside their house in an incident of loot besides admitting that father of A-2 had lodged a case against them. P.W. 1 further denied that A-3 had whisked out and wielded knife after Appellants were assaulted by kicks and fists by P. Ws. 1, 3 and 4. He had also denied defence suggestion that he had gone to the house of Appellants to assault them.

Another injured witness Mahesh Kumar P.W. 3 fully supported P.W. 1 in all important aspects of the incident. He was also tested thoroughly by the defence counsel wherein he had deposed that they had reached station at about 8.40 a.m. and they had reached place of incident at about 9 or 9.15 a.m. He further disclosed that he was carried to the police station on a scooter and from police station to Khatri Nursing Home on the same scooter but from Nursing Home he was carried in an ambulance to the hospital. A-3 had caught hold of him when A-4 had pierced knife in his chest. He had refuted defence case that there was illicit relationship between Poonam and A-3 and A-4 and therefore, they have falsely implicated the Appellants. He further refuted defence suggestion that Poonam had cupid relationship with A-3 and A-4 and she used to write letters and the two Appellants had got photo of Poonam as well.

Third witness of fact father Chatrapal Singh P.W. 4, testified before the Court that while he was going to the station alongwith his daughter Poonam accompanied with P.W. 1 and 3 the two Appellants A-3 and A-4 had dashed their motorcycle with Poonam and thereafter he had left for Delhi accompanied with his daughter. He was informed about the incident in his bank office and thereafter he had returned to Ghaziabad from Delhi. During his cross-examination he had supported P.W. 1 and 3 entirely and had further deposed that after the motorcycle was dashed he had not said anything to the Appellants. He had further informed that earlier also there had been an altercation between his sons and the Appellants. Information regarding the incident was conveyed to him between 10.30 and 11.00 a.m. by his Colleagues. While admitting pendency of a case against them in the court of A.C.J.M., Ghaziabad, he had refuted defence suggestion of giving false evidence.

Formal witnesses in their depositions before the Court narrated those very facts which are recorded hereinabove and hence are eschewed from being repeated.

In their statements u/s 313 of the Code, Appellants pleaded innocence and denial. A-3 further stated that because of the political leaders he had been implicated falsely. A-1 and A-4 stated that P.W. 1, 3 and 4 alongwith four or five of their associates had assaulted them with an intention to murder but their report was not taken down and therefore, with the help of an application u/s 156(3) of the Code they got an F.I.R. registered against P. Ws. as culprits. Accused did not examine any defence witness but filed certified copy of their F.I.R. of Cr. No. 3 of 2000, injury reports of Mohd. Saleem and Mohd. Tahir, copy of site plan and charge-sheet against P. Ws. 1, 3 and 4 of cross case.

Trial court after critically appreciating facts of the case and evidences led before it concluded that prosecution has successfully established Appellants guilt and therefore convicted and sentenced them as above hence these appeals challenging those convictions and sentences.

I have heard Sri Rajendra Kumar Pandey advocate on behalf of all the Appellants and learned A.G.A. in opposition.

Learned Counsel for the Appellants assailed impugned judgment by canvassing that the trial Judge wrongly relied upon prosecution evidences, no complaint was made regarding teasing because that was a false allegation. He canvassed that defence of the Appellants is true narration of incident and in a brawl that ensued at the house of the Appellants that injured sustained injuries. Place of incident is the house of the Appellants and the prosecution has not explained the injuries sustained from the side of the Appellants. Learned Counsel further submitted that there was a cross version and therefore both the cases should have been tried simultaneously one after another by the same court, which procedure was not adopted by the trial Judge and therefore conviction of the Appellants is indefensible. It was further argued that but for A-4 prosecution case in respect of other accused is not established. All prosecution witnesses are related inimical partisan and no independent person came forward to support their allegations and hence conviction of the Appellants is not sustainable. It was suggested that two accused had sustained injuries from the side of the Appellants and prosecution has not offered any explanation for those injuries and therefore it''s witnesses are either not reliable or they are suppressing genesis of the incident and in either case Appellants deserves acquittal. At last it was submitted that all the appeals deserves to be allowed and conviction and sentences imposed on the Appellants be set aside.

Learned A.G.A. per contra refuted all the contentions harangued by learned Counsel for the Appellants and submitted that prosecution has established it''s charge to the hilt beyond any shadow of doubt and therefore, appeals being meritless be dismissed. All prosecution witnesses are reliable and their depositions are unblemished, creditworthy and trustworthy and therefore cannot be discarded. There was no enimous between them and the Appellants to lay a false charge and therefore their depositions which is of an unimpeachable character must be accepted as correct narration of the incident. Albeit all prosecution witnesses were subjected to lengthy and tiring cross-examinations but the defence miserably failed to elicit any favourable circumstance to it which can discredit their testimonies. Mere relationship is no ground to reject testimonies of reliable witnesses. It is the quality of evidence that matters and not the relationship submitted learned A.G.A. Concludingly, it was submitted that all the appeals lacks merit and hence be dismissed.

I have considered rival contentions and have perused the trial court record in the light of raised contentions. Admittedly there are two cross versions regarding the same incident. Some of the facts in issue are common to both the versions. They are place and date of incident and presence of P. Ws. 1, 3 and 4 and A-1, 2, 3 and 4 at the spot.P. Ws. 1 and 3 from the prosecution side and A-1 and A-4 from the defence side had sustained injuries in the incident. Weapon wielded by A-4 has also not been disputed seriously. Albeit A-3 pleaded alibi but to support his defence he had led no evidence. Alibi is subject to proof and in absence of any evidence supporting such a claim by A-3 same cannot be accepted. In such circumstances what is to be judged is as to which side was the aggressor and out of the two which version is more credible.

Judging from above angle I find that prosecution witnesses of fact are truthful, cogent and clear in their depositions. They have supported prosecution version in all it''s material aspects of the incident. They have not attempted to shield names of their sisters at the cost of their family prestige. Prosecution case is consistence from it''s very beginning. It was because of eve teasing that incident had occurred. There was no reason for the prosecution witnesses to introduce a young damsel in the incident and that too their sisters and daughters. They all narrated that on the date of the incident A-3 and A-4 had dashed their motorcycle with Poonam. This must have been immediate cause for P. Ws. 1 and 3 to come to house of A-2 to lodge their protest. This is a very natural conduct. None of the prosecution witness had any enimous against Appellants to rope them falsely in a fabricated version at the cost of their family reputation to anoint temerity. Prior to present incident no F.I.R. was lodged by them ostensibly to save faux pas and family prestige. No capital can be made out by the defence of this lapse on the part of the prosecution. There was no motive for the prosecution to built up a story of going to railway station as that would not have benefited them in any manner and hence their story of going to railway station is credible. More over there was no earthly reason for the prosecution witnesses to go to the Appellant''s house at that hour of morning but for the reason testified by them. Specific role of each of the Appellant was disclosed during course of trial by those witnesses and no criticism could have been raised against them nor defence counsel could point out any damaging evidence in their depositions. Medical evidence of the two doctors also lend credence to the prosecution version being consistent with it. In this respect no criticism could be advanced by learned Counsel for the Appellants. Merely because P. Ws. are related is no ground to reject their testimonies, which is otherwise confidence inspiring, is the trite law. In this respect some of the referable decisions are as follows:

In Rajesh Kumar v. State of H. P., AIR 2009 SC 1: 2009 (1) ACR 785 (SC), it has been laid down as follows:

There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard.

In Bur Singh and Another Vs. State of Punjab, Apex Court has held as under:

Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dalip Singh and Ors. v. State of Punjab, AIR 1953 SC 364, it has been laid down as under:

A witness is normally to be considered independent, unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along-with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, 1974 (3) SCC 698 , in which Vadivelu Thevar Vs. The State of Madras, was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh''s case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed:

We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 at p. 59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

Again in Masalti and Ors. State of U.P., AIR 1965 SC 202, this Court observed: (p. 209-210 para 14):

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses...... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence ; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

In Ram Singh v. State of M.P., AIR 2009 SC 282: 2009 (1) ACR 390 (SC), it has been held as under:

We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dalip Singh and Others Vs. State of Punjab, it has been laid down as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along-with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

Thus, in view of above, contention of learned Counsel for the Appellants regarding related witnesses needs rejection and is hereby rejected.

To the contrary it is very surreal that defence had not led any oral evidence in support of it''s case. It not even endeavoured to establish it on preponderance of probabilities. Appellants did file certified copies of some of the documents to support it''s version but did not lead evidences to support them. A-3 suggested to P.W. 1 that he was assaulted but he, never pleaded that suggestion in his statement u/s 313 of the Code. Appellants even did not attempted to get their trial in which prosecution side is an accused committed to the Court of Sessions to be tried alongwith their trial in which they are accused. It is therefore too late in the day for them to cry foul. They took the risk of arguing their case and therefore, now they cannot take a U turn to contend that they have been prejudiced. Further defence has not endeavoured to get its injuries and F.I.R. exhibited. The accused persons have not got the original application proved. Further the injury sustained by A-4 indicates that he had sustained a superficial injury. So far A-1 is concerned he too had sustained superficial injuries. It is very clear that instead of filing these papers as is provided under General Rules (Criminal), which is applicable to the lower court, the same has been filed without affixing any stamp on a plain paper. Perusal of defence F.I.R. indicate that there is absolutely no mention about injury caused to P.W. 3 by knife. Thus defence version does not inspire any confidence at all not even on preponderance of probability. Defence version is also not acceptable because on the one hand it canvassed exercise of right of private defence but on the other hand it led no evidence to substantiate it. In this respect I rely upon following decision of the Apex Court. In Bali Ram Prasad Vs. State of Mysore, it has been held as under:

The accused was a Revenue Inspector and it is most difficult to believe that he would issue receipts for Rs. 946 even though he actually received an amount of Rupees 810. In any case, the failure of the accused to mention this fact in his statement u/s 342, Code of Criminal Procedure would go to show that the above plea is the result of an afterthought.

In Bihari Rai Vs. State of Bihar (Now Jharkhand), , it has been observed by the Apex Court as follows:

Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded.

In the instant appeal also Appellants have failed to prove exercise of right of private defence. Firstly according to prosecution case P. Ws. 1 and 3 had gone to the house of Appellants empty handed. No suggestion at all was given by the accused to either of the two witnesses P. Ws. 1 and 3 that they had come there armed with blunt object and iron rod. It is also not suggested to them that they assaulted Appellant''s side after entering into their house. In absence of any such suggestion to any of the prosecution witness it is not possible to draw a presumption against P. Ws. without affording them opportunity of explanation. In this context I rely upon the view of the Apex Court in Onkarnath Singh and Others Vs. The State of U.P., , wherein it has been held as follows:

The question is, what is the effect of this non-explanation of the injuries of Parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused (see AIR 1971 SC 2233 ) (supra), and Bhagwan Tana Patil v. State of Maharashtra, Cr. Appeal No. 78/70, D 9-10-1973, reported in Bhagwan Tana Patil Vs. The State of Maharashtra,

Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party Was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises.

In yet another decision State of Gujarat v. Bai Fatima, AIR 1975 SC 1478, it has been held as under:

Now we come to deal with the question of right of private defence. ''It is no doubt true that the prosecution did not explain the injuries on the person of Respondent No. 1. P.W. 5 Dr. S.C. Masalia who had examined the injuries on the side of the prosecution also examined Fatima, Respondent No. 1 when she was sent to him by the police. Fatima Bibi had lodged a complaint before the police which was found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968. That is Ext. 44. In this complaint she stated that her young one of the goat had gone in the Angana of Gulabkhan. The three persons named in the complaint were Gulabkhan, Bai-bibi, mother-in-law of Gulabkhan and Nannubibi, his wife. The two ladies caught hold of her Odhana and began to give her blows of kicks and fists. Gulabkhan gave stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the person of Fatima Bibi were 5 in number, three contusions on the right forearm, one contusion on posterio-parietal part of right side of scalp and one contusion on scapular part of right side of back. The injuries were all of minor character. In her statement u/s 342 of the Code of Criminal Procedure, 1898 Respondent No. 1 stated almost the same story and added that Gulabkhan was drunk while he was abusing her. Neither in Ext. 44 nor in the statement u/s 342 there was a wisper by Respondent No. 1 of her having squeezed the testicles and the private part of Gulabkhan. Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan in exercise of her right of private defence to protect her from further assault. Nor was any evidence adduced in Court to give any counter version of the occurrence. No foundation was laid to enable the Court to acquit the Respondents granting them a right of private defence. It did require a pure conjecture and imagination to hold the Respondents not guilty by extending to them the right of private defence.

In view of above since no foundation was laid by the accused in support of their plea of right of private defence nor they examined any witness to support their claim I am not inclined to throw overboard prosecution case. Secondly, in their statement u/s 313 of the Code all the accused did not took the plea of exercise of right of private defence at all. What has been stated by two of the Appellants was that they were assaulted by prosecution side but this suggestion remains unsubstantiated. Thirdly. P.W. 4 claimed absence during incident whereas according to defence case he was present at the spot and had participated in assault. According to P.W. 4 he was at Delhi at his working place but was made an accused in the cross F.I.R. by the Appellants. When he was in the witness box no question was put to him regarding his presence at the scene of the incident as was claimed by the defence. It was not even suggested to him that he was present at the spot during the incident. Fourthly, alibi of A-3 was suggested to P. Ws. 1 and 4 but the same was not stated by A-3 in his statement u/s 313 of the Code. Fifthly, P.W. 5 had medically examined A-1 and A-4 as is revealed from defence papers but when the said witness was in the witness box Appellants could not muster courage to get those medical reports duly proved. They intentionally eschewed it consciously because probably injuries suffered by them were self inflicted. Defence also did not file deposition of the doctor in cross version to negate prosecution case. Merely filing of injury reports without getting them proved is of no help to the accused. Sixthly no immediate motive had been suggested to the prosecution witnesses for them to come to the house of the Appellant''s at such an early hour of morning and therefore defence version cannot be swallowed. Seventhly, oxymoron suggestions to all the witnesses does not inspire any confidence in defence theory. I don''t mean to say that accused has to prove it''s case beyond any shadow of doubt but what is fathomed out is that defence version of exercise of right of private defence is false and does not inspire any confidence. It is very queer that defence had not even suggested exercise of right of private defence to P.W. 3. On the contrary suggestion to P.W. 3 establish that A-3 and A-4 were eve teasers and a conclave was also convened for that purpose. This lend credence to motive part as was stated by prosecution witnesses.

Now coming to another important aspect of the appeal as to what offence was committed by each Appellant, I am of the opinion that so far as A-4 is concerned his guilt u/s 307, I.P.C. is established to the hilt without any second thought. He had pierced knife with venomness in a most ghastly manner causing extensive internal damage to P.W. 3. Force with which that injury had been caused and damage which P.W. 3 had sustained because of that falls squarely within the ambit of offence u/s 307, I.P.C. He unerringly, intended to commit murder of P.W. 3. In this respect it is also pointed out that trial Judge had charged A-4 with the aid of Section 34, I.P.C, which obviously was a mistake. Trial Judge was not careful in framing charges. He even omitted to charge accused A-1 to 3 u/s 323/34, I.P.C. However this fact should not distract me as no prejudice has been caused to the Appellants during trial to defend themselves and meet out prosecution case which was consistent from it''s inception. Specific roles of Appellants was spelt out by the P. Ws. Otherwise also defect in charge by itself is not sufficient to obliterate conviction as is provided under Sections 215 read with 464 of the Code. Probably it is because of this reason that not much argument was canvassed by learned Counsel for the Appellants in this respect. A-3 had caught hold of P.W. 3 when he was assaulted with knife by A-4 and hence his conviction u/s 307/34, I.P.C. can also not be assailed.

Coming now to the offences committed by A-1 and A-2, it is difficult to cogitate that they shared the same common intention as that of A-3 and 4. They have caused only simple injuries to P.W. 1. None of them had assaulted P.W. 3. Injuries of P.W. 1 does not indicate that he was belaboured with intention to commit murder. Incident was preceded with a tiradic altercation. In such a view it is very difficult to conclude that A-1 and 2 shared same common intention with A-3 and A-4 and intended to commit murder. Resultantly I am of the opinion that though A-1 and 2 did participate in the assault and caused injuries to P.W. 1 but there was no commonality of purpose between them and A-3 and 4 and hence their conviction u/s 307/34, I.P.C. is unsustainable. But, since they had assaulted P.W. 1, their conviction u/s 323/34, I.P.C. does not call for any interference. Further since A-3 and 4 had not assaulted P.W. 1 their conviction u/s 323/34, I.P.C. and sentence thereunder is also indefensible and is liable to be set aside. I am also of the opinion that imposed sentence of one year R.I. on A-1 and 2 is too excessive.

Concluding this judgment, Criminal Appeal No. 2752 of 2006, Saleem alias Pappu v. State, is allowed in part. Conviction of Appellant Saleem (A-4) u/s 323/34, I.P.C. is hereby set aside and he is acquitted of that charge. His conviction u/s 307/34, I.P.C. is altered to one u/s 307, I.P.C. and for that offence he is sentenced to the same sentence of 10 years R.I. with fine of Rs. 5,000, and in default of payment of fine to undergo 2 years further R.I.

Criminal Appeal No. 2148 of 2006 Arif v. State, is allowed in part. Conviction of Appellant Arif (A-3) u/s 323/34 is set aside but his conviction and sentence u/s 307/34, I.P.C. is hereby maintained and his appeal is dismissed on that score. He is directed to surrender forthwith to his bonds.

Criminal Appeal No. 1951 of 2006 Mulla alias Kalu alias Tahir and Anr. v. State, is allowed in part. While conviction of Appellants Mulla alias Kalu alias Tahir (A-1) and Rahis alias Babu (A-2) u/s 323/34, I.P.C. are maintained but their sentence for that offence is reduced to the period already undergone by them. However their conviction u/s 307/34, I.P.C. and sentence thereunder is hereby set aside and they are acquitted of that charge.

Since two of the Appellants Mulla alias Kalu alias Tahir and Rahis alias Babu have already served out their sentence they are directed to be released from jail forthwith unless they are incarcerated therein Connection with some other offence.

Compensation of Rs. Ten thousand as was ordered by the trial court to be given to P.W. 3 is also not interfered with.

The above appeals are allowed in part as above.

Copy of this judgment is directed to be transmitted to the trial court for it''s intimation.