Munsarif Khan vs State of U.P.

S.K. Agarwal, J.—This criminal appeal has been preferred by Appellant Munsarif against his conviction u/s 304(1), I.P.C. and consequent sentence of 5 years R.I. passed by Sessions Judge, Bahraich.

Brief facts of the case are that Ibrahim has two sons, Appellant and his elder brother deceased Lal Mohammad. These 3 persons were living separately in the same premises. On 23rd of June, 1985 at about 6 p.m., a quarrel between Lal Mohammad, deceased, and accused Appellant Munsarif took place on account of some disturbance to the wooden partition (Tatiya). It is claimed that Munsarif, Appellant, disturbed that and Lal Mohammad was re-arranging it. Munsarif in the meantime struck him a lathi blow on the head. As a result of the blow, Lal Mohammad fell down. He was taken for medical aid on 24.6.1985 at 1.10 p.m. He was examined by Dr. Nanak Chand. An injury measuring 2 cm. ? 1 cm. ? 1/4 cm. on the forehead 11 cm. from the root of nose was noticed. The injured was advised for X-ray of the sculp and was referred for proper treatment to the District Hospital. He subsequently was shifted to District Hospital, Bahraich, where he breathed his last at about 9.10 p.m. on 24.6.1985. An information of the demise of Lal Mohammad was conveyed to P.S. Kotwali Nagar. An inquest report was prepared and the body was sent for post-mortem examination. Dr. S. K. Srivastava conducted the post-mortem examination on the person of Lal Mohammad on 25th June, 1985 at 2.45 p.m. The above injury in the post-mortem was found to be bone deep on the left of head 3 cm. above left ear with contusion in an area of 8 cm. ? 8 cm. around the wound. An abrasion was also noticed on the left side of forehead measuring 1 cm. ? .05 cm. The death occurred as a result of the above ante-mortem injury. Investigation of the case was conducted by Sub-Inspector Udai Singh. A charge-sheet on the completion of investigation was submitted on 21st July, 1985.

Prosecution in order to establish its case against the Appellant examined Jabir, P.W. 1, Smt. Bhullur, P.W. 2, wife of the deceased and P.W. 3, Ibrahim, father of both the Appellant as well as the deceased.

The defence of the Appellant is denial of the prosecution story as brought about in evidence. His case is that he was assaulted first by the deceased and in defence of his person, he had given one lathi injury upon the deceased. No witness was examined by him in defence. However, he has brought on record the medical examination report of his injury conducted in the jail on 2.7.1985 at 6.30 p.m. Its duration, as noted down by the medical officer in Ex.-Kha 10, is 9 days old.

The prosecution in this case had been conducted in a most casual manner. Neither the medical officer was examined nor any X-ray examination report have been brought on record. The doctor who conducted his initial medical examination was not examined. The doctor who conducted the post-mortem too was not examined. The investigation officer and the Head Moharrir were also not examined by the prosecution. The Sessions Judge had not taken care to summon any of these witnesses, probably guided by the fact that in the present case, the defence has admitted certain facts and, therefore, non-examination of these witnesses was presumed to be of no consequence by him. The law does not permit such a course to be adhered to by the trial court. It is a most peculiar manner to conduct a trial. The law has imposed an obligation upon the prosecution to stand on its own legs. Any infirmity occurring in the defence or any admission made by the accused cannot form basis of his or their conviction alone. Such lacunae or admissions can only be utilised to strengthen the case if it is found trustworthy otherwise.

In the light of the facts discussed above, I will like to examine the evidence of the above 3 witnesses. Suffice it to say that out of these 3 witnesses, P.W. 1 and P.W. 3 have turned their tails upon the prosecution. They have not supported the prosecution story as put forth in the first information report and adhered during the investigation stage. These two witnesses have denied that the Appellant had initiated assault. According to these witnesses, it was the deceased Lal Mohammad who had initiated the assault upon the Appellant and Appellant had acted in the defence of his person. As a matter of fact, none of these two witnesses have stated clearly that the Appellant had given any blow upon the head of the victim. P.W. 3 is the father of the Appellant as well as deceased. He is also the maker of the first information report. This witness has denied the contents of the first information report. According to him, this first information report was transcribed by some one else and only his thumb mark was obtained on it by the Investigation Officer. How the contents of this first information report are proved is beyond comprehension? Contents of this first information report cannot be looked into for corroboration of the evidence of P.W. 3 or for the corroboration of evidence of others. This first information report, therefore, does not help, the prosecution in any manner. Moreover, the non-production of the Investigating Officer and the Head Moharrir does not even prove that it was this first information report which was transcribed on the dictation of Ibrahim at the police station. In the circumstances, in my opinion, this first information report cannot be used for corroboration of the prosecution story.

So far as these witnesses are concerned, they are all closely related to each other. Not a single independent witness has been produced by the prosecution. The trial court has relied upon Smt. Bhullar, P.W. 2. On a close examination of her testimony, it is revealed that she has also suppressed the truth from the Court. She has stated in her testimony in cross-examination that the Appellant used to disturb frequently the position of the wooden partition (Tatiya). On the day of occurrence also, he did the same but her husband did not say anything. On the contrary, the Appellant started hurling abuses on him and his father-in-law P.W. 3, Ibrahim, who exhorted the Appellant to break the head of the deceased and upon this exhortation, the Appellant went inside and came out with a lathi and gave a lathi blow on her husband''s head. As a consequence of the blow, the victim fell unconscious. This is absolutely a new story, which has neither been reported in the so called F.I.R. nor in the statements of P.W. 1 and P.W. 3. This part of her statement that the father exhorted the Appellant to give a blow or assault to Lal Mohammad in all probability is indicative of the fact that P.W. 3 exhorted his son deceased Lal Mohammad to assault the Appellant. It is the case of the Appellant that he was first assaulted by Lal Mohammad and in his self-defence, he used his lathi. She had further stated that 5-6 lathi blows were given on the head and 2-4 lathi blows on other parts of the body of the victim by the Appellant. This part of her testimony is completely belied by the medical examination report as well as the post-mortem examination report. In the light of the above discussions of her evidence, she cannot be termed a reliable witness. She is clearly suppressing the genesis of the maarpit from the Court and is making a highly coloured statement. Her testimony is not reliable. It rather lends credence to the defence version.

In the result, the defence of the Appellant stands probabilised. The defence is not required to prove its case beyond reasonable doubt. The requirement of law with regard to the defence is, specially in the cases of right of private defence of person, to probabilise his version from either by the defence evidence or circumstantial evidence or from the evidence of the witnesses produced by prosecution. An accused is thus required to probabilise his defence. The defence has succeeded in doing so.

In this view of the discussions, the Appellant has won his acquittal and this appeal is accordingly allowed. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are hereby discharged.