Mutahir Mian vs State of U.P.

S.K. Agarwal, J.—The present appeal was filed by the above Appellant against the order of his conviction u/s 302, I.P.C. and consequent sentence of life imprisonment passed by Sri A. P. Mittal, Sessions Judge, Rampur, on 2.12.1980 in S.T. No. 30 of 1980.

The prosecution version, as contained in the first information report, is that on 4.11.1979 at about 9.30 a.m. when the informant Zahidullah along with his brother Sajidullah (deceased) and Shakirullah were returning via triangular crossing at Majar Khurmewali, they were accosted at that crossing by Appellant Mutahir Mian. The Appellant challenged them by saying "Bahadur Aa Rahe Hain". On this, the deceased questioned the Appellant. Immediately thereon he was stabbed thrice by the Appellant. His brother Zahidullah, in order to save his brother from any further assault, attacked the Appellant with a knife, resulting into simple injuries on the person of Appellant. Finding the condition of the injured grave, leaving him in the custody of his brother-in-law Yakub Khan and younger brother Shakirullah with the instruction to carry him to the hospital, Zahidullah immediately proceeded to the police station for reporting the matter. The report was got scribed from P.W. 9 Rajendra Prakash Saxena and the same was lodged by him at the police station Kotwali, Rampur, at about 10.15 a.m. The F.I.R. was marked as Ext. Ka-1. The check report is Ext. Ka-3 and copy of the G.D. entry was marked as Ext. Ka-4. The investigation of the case was taken over by P.W. 8 S.I. Iqtedar Hussain Rizvi.

After preparing the memo of inquest and despatching the body for post-mortem from the hospital, the S.I. came to the spot, prepared the site map, which is Ext. Ka-7, and recorded the statement of the scribe. He had taken also blood stained and simple earth through its memo Ext. Ka-8. Before coming to the hospital he had also taken into custody the Appellant, who was present at the police station at the relevant time. The Appellant had gone there to lodge his own version of the incident. His F.I.R. was taken down u/s 324, I.P.C. It is Ext. Ka-6 on record. On the next day he had recorded the statements of witnesses Shakirullah, Akbar Ali, Abid Khan and Shahzad Ali and others. Charge-sheet (Ext. Ka-13) was submitted by him on 7.11.1979.

The Appellant has denied the occurrence in the manner as alleged by the prosecution. According to his defence he was present at his cycle repairing shop near Khurmewali Ziarat (market). These three brothers reached there and started hurling abuses on him. They also started giving him knife blows. He ran from there but these three chased and surrounded him. When he felt that his life is in peril, to save himself, he attacked one of them, Sajidullah, with knife. He claimed that from the spot, he straightaway went to police station to lodge his version.

It is an admitted fact that the Appellant reached the police station at about 10 a.m. His report was taken down at 10 a.m. As earlier pointed out, it is Ext. Ka-6.

The prosecution in support of its case has examined P.W. 1 Zahidullah, P.W. 4 Shakirullah, P.W. 5 Abid Khan and P.W. 6 Shahzad Ali. Out of these witnesses Zahidullah and Shakirullah are brothers inter se and they are also brothers of the deceased. Abid Khan and Shahzad Ali Zaidi (P.Ws. 5 and 6) are residents of different localities distanced by 1/2 km. and 1-1/2 to 2 kms. from the spot. They were chance witnesses. Apart from these eye-witnesses, P.W. 2 Dr. J. G. Garg conducted the autopsy on the person of the deceased. P.W. 3 constable Narendrapal Singh is the escort of the dead body. P.W. 7 head constable Nand Ram Singh received the written report and prepared chick F.I.R. and G.D. entry pertaining to registration of the case. P.W. 8 Iqtadar Husain Rizvi is the Investigating Officer and P.W. 9 Rajendra Prakash Saxena, the scribe of the F.I.R., were also examined. This in the nutshell is the entire evidence adduced by the prosecution in this case.

The Appellant has not produced any ocular evidence in defence.

Learned Counsel for the Appellant has submitted that the Appellant had assaulted the victim on being attacked, meaning thereby that he had acted in defence of his person. He has also lodged his report. He has further submitted that according to the evidence of the prosecution the deceased and his two brothers were tall and stoutly built. It is unbelievable that an assault launched by Zahidullah in the manner alleged by prosecution will result only in simple injuries to the Appellant. The contention, in short, is that the explanation offered for the injuries of the Appellant is wholly improbable. Lastly, it has been submitted that none of these witnesses were present at the spot. Had any one of them been there, they would not have escaped unscathed. From own evidence of the prosecution it is apparent that they all were armed with knives and the Appellant could not have been successful in causing so many injuries to the deceased.

In order to assess these submissions, we have to examine the evidence adduced by the prosecution. As earlier stated, two of the eye-witnesses are own brothers of the deceased and the other two witnesses are chance witnesses. They belong to other localities. Their evidence has to be examined with great care and caution before their testimony can be accepted and used as corroborative to these two other brothers.

P.W. 1 is maker of the F.I.R. His claim is that he had gone to see his ailing uncle. He left his house at 8 a.m. all alone and the other brothers joined him there after half an hour. After staying for 7/8 minutes, they were returning together to their house and as they reached near the triangular crossing at Majar Khurmewali, they found the Appellant standing on their left-hand side. Seeing them, he yelled out "Bahadur Aa Rahe Hain". Sajidullah (deceased) questioned, "what is he saying". Upon this, it is alleged, the Appellant drew a knife from his waist and attacked Sajidullah thrice on his chest and other parts of the body. After receiving injuries, Sajidullah fell on the ground and became unconscious. His brother-in-law in the meantime reached the spot. Sajidullah was left in the care of his brother-in-law and brother with an instruction to take him to the hospital. This witness thereafter left the spot for police station. In Mohalla Inayat Khan, on his way to police station, he met P.W. 9 Rajendra Prakash Saxena. He dictated his report to him. After it was read over to him, he carried it to the police station where it was handed over to the head moharrir at 10.15 a.m. From there he had gone to hospital. On reaching there, he came to know about the demise of his brother, who breathed his last on the way to hospital. Paragraph Nos. 3 and 4 of his statement clearly indicate about the criminal antecedents of this witness. Twice he was accused in dacoity cases but because of no identification, he was let off. At the time of occurrence, he was facing a trial u/s 377, I.P.C. He has clearly admitted in paragraph No. 4 that apart from his brother, the Appellant was nursing individual animosity against him as well. He has also admitted that on 18.10.1976 at Topekhana road near a cinema hall, the Appellant was fired upon and he along with Aslam alias Mammu was prosecuted and convicted to 5 years sentence. That appeal is still pending in the High Court. He further admitted that Sajidullah sustained gun-shot injuries on 20.7.1977. His companion Aslam was injured by knife. A case against the Appellant and his father Mustafa Miyan and another person Alam Miyan was prosecuted in which the Appellant was convicted and sentenced to 6 years'' R.I. He was suggested that in appeal before the Sessions Judge, he was acquitted of that charge, which he denied. He was further suggested that his acquittal was not liked by them and they were trying to avenge that assault. Appellant''s father Mustafa was murdered after the present incident and in that murder, he along with his brother P.W. 4 Shakirullah and his witness P.W. 6 Shahzad Ali Zaidi were prosecuted. That trial is still pending. He made an evasive reply to the question that the hand of P.W. 5 Abid Khan was broken in that case and he, Appellant along with Tannu were accused. He claimed that he does not remember any such case being prosecuted against him and they were acquitted in that case. He had admitted that he had correctly got transcribed in the report that his brothers Sajidullah and Shakirullah along with him were returning from the side of Rajdwara to their house. When they reached near Khurmewali triangular crossing, the Appellant met them. He further admitted that he had not disclosed in his F.I.R. that he and Shakirullah raised alarm which attracted the witnesses to the spot. He claimed that he forgot to transcribe this fact in F.I.R. He further admitted that he did not disclose this fact to Investigating Officer in his statement u/s 161, Cr. P.C. He admitted that Aqbar Ali nominated in the F.I.R as a witness is a resident of Mohalla Pahari Gate, which is at a distance of 2 miles. He knew him for the last 6/7 days only. At the time of their first meeting, he only enquired from him his name and place of residence. He did not ask his parentage. While going to police station, after the incident, he enquired from him his parentage. P.W. 6 Shahzad Ali Zaidi is a resident of Mohalla Katkuiyan, which is at a distance of a mile and a half from the place of occurrence. P.W. 5 Abid Khan is resident of Rajdwara. His house is at a distance of half a mile. He further admitted that in the vicinity to the north of the road, there are shops. In the south, there are shops of wood (taal). His house, from the place of occurrence, is about 150 steps. Nearby the wood shops in the west there are 6/7 shops and after the shop of Tahir Khan there are another 10/15 shops. Thus, from his statement it is apparent that the place of occurrence was surrounded by many shops. He has denied outright the defence case that they had attacked Mutahir Appellant and he caused injuries to deceased Sajidullah in his defence.

Thus, from his testimony, it is apparent to us that he had not transcribed in the F.I.R that the witnesses were coming from other direction and they were attracted to the spot on their alarm. This fact was not told by him to Investigating Officer as well. Two of the witnesses (P.Ws. 5 and 6) are residents of different localities. They are chance witnesses. One of the witnesses nominated in the F.I.R was known to him only for the last 6/7 days and he learnt his father''s name only while leaving for the police station. He did not go to the hospital. He is the eldest amongst brothers. He has his house at a distance of only 150 steps and the locality was surrounded by many shops. The time of occurrence was such that there is greater probability of these shops being open. He has criminal antecedents also. He was also an accused along with P.W. 6 Shahzad Ali and his brother P.W. 4 Shakirullah in the assault case upon the Appellant as well as subsequent to the present incident in the murder of his father. He was also an accused in the assault case of P.W. 5 Abid Khan and on the basis of a compromise, that case resulted into their acquittal, although he had denied that the compromise was struck only between him and Abid Khan and the case against Mutahir Appellant was prosecuted. In the F.I.R, he had only stated that they were returning from the side of Rajdwara. He has not stated therein that he was returning from the house of his uncle, who was ailing and they had all gone there to see him. He has also admitted the animosity with the Appellant. These circumstances lead us to the inference that in all probability this witness was not there when the incident occurred.

There is yet another circumstance which creates serious doubt in the F.I.R being lodged at 10.15 a.m. immediately after the lodging of F.I.R by the Appellant. The post-mortem examination report shows clearly that the copy of the F.I.R was received by the doctor in the midst of post-mortem examination. It was endorsed at No. 6 and was attached with other enclosures, which apparently was received at the time of post-mortem. It is a fact that the Appellant had given out his version to the police first and thereafter the impugned report was registered. The explanation of his injuries, therefore, was introduced in all likelihood after coming to know of the version of the Appellant at the police station. This is a probability which cannot be negtived easily from the circumstances available to us. First informant has not sustained any injury despite serious enmity with the Appellant. This also negates, in our opinion, his presence at the spot. It was argued by the State counsel that his presence is admitted by Appellant in his F.I.R. as well as statement u/s 313, Cr. P.C. This admission does not adversely affect the defence version. We, under the circumstances, are required to evaluate the truthfulness of defence version vis-a-vis the prosecution case regarding the manner of assault.

Coming to the testimony of P.W. 4 Shakirullah, his examination-in-chief is absolutely in the same terms as that of his brother P.W. 1 Zahidullah. According to him, they had taken away Sajidullah to the hospital within a minute and half or two of the incident. He has further admitted that 8/10 people, apart from eye-witnesses, were also present there. He did not know any one of them. He also did not know whether they were passers-by or were shopkeepers. When the incident occurred, there was none apart from the accused-Appellant on the road. They had not suspected anything on seeing Mutahir standing on the left of the road. He had admitted that number of criminal cases were contested between Sajidullah (deceased) and Zahidullah on one hand and Appellant Mutahir on the other. He himself never scribed any report against the Appellant nor appeared in any case against him. According to him, Sajidullah was an employee in Raja Textile Mill and he used to go to the factory all alone. None of them ever accompanied him. Similarly Zahidullah had a motor mechanic shop (garage) near roadways bus stand. This shop was at a distance of 2 to 2-1/2 miles from their house. On the same road about a mile from the garage of his brother is Raja Textile Mill. His statement was recorded by the Investigating Officer on the next day, i.e., on 5.11.1979. He had admitted that he had not disclosed to the Investigating Officer that they were returning after seeing their uncle. He could not offer any explanation for this omission. He further admitted that when the Appellant had called them brave persons he was not possessing any knife in his hand. Immediately after making that statement, he drew the knife out from his waist and attacked Sajidullah. Sajidullah seeing the Appellant coming towards him with an open knife did not move away even a step from that place. He held his ground firmly. When his brother deceased Sajidullah received the first blow, they were about 2/3 steps from him. On the very first blow, they raised alarm but they did not move to defend their brother or catch hold of the accused. They did not do so because he was brandishing an open knife. They had not chased him as well for the above reason when he was running away. Here he is clearly contradictory to his brother who claimed that he used a knife on the Appellant. This witness is an accused in the murder of the Appellant''s father along with his brother Zahidullah and P.W. 4 Sahidullah. He has also denied the defence suggestion completely.

The conduct of this witness is such that it appears to us clearly that he was not present at the spot. He is brother of the deceased and the informant too. He is bound to depose, even if he had not seen the incident of his own eyes against the Appellant and support the version contained in the F.I.R. Animus between his family and this Appellant is an admitted fact. Omission in Section 161, Cr. P.C. statement regarding his returning after seeing their ailing uncle in this context assumes importance.

So far as P.W. 5 Abid Khan is concerned, we find that he had not seen the initial part of the incident. He was coming from the opposite direction and had seen only the Appellant assaulting the victim. He is an inimical witness, although he has denied the suggestion that he had compromised the assault case on him in which his hand was broken with only Zahidullah and Tannu and prosecuted the Appellant. But it appears from the tenor of his response that this suggestion is correct. His statement too was recorded the next day and no explanation is available from the evidence of P.W. 8, Investigating Officer Iqtedar Hussain Rizvi as to why their statements were not recorded on the same day. In his statement to Investigation Officer, he had minimised the distance of his house from the spot. According to P.W. 1 Zahidullah, his house is about half a mile from the place of occurrence, but he had stated that it is only 250 steps away. He had very clearly admitted that he had not disclosed to Investigating Officer that P.W. 1 Zahidullah assaulted the Appellant with a knife after his brother fell on the ground. His explanation is that he did disclose this fact to Investigating Officer and he may have missed to scribe it. In his statement to Investigating Officer, presence of Aqbar Ali and P.W. 6 Shahzad Ali Zaidi was also not disclosed. Thus, this witness appears to us not only an inimical witness but also close to the complainant side and, therefore, he is supporting their case. His presence at the spot, in the circumstances, at the relevant time is a highly doubtful, event. In the site plan, his place of standing is not shown at all although it was prepared at the instance of P.W. 1 Zahidullah and the witnesses as well.

Now coming to the testimony of the lone so called independent witness Shahzad Ali Zaidi, we find that he too stated that at about 9.30 a.m. He was coming from the side of Rajdwara and going to Majar Khurmewali. As soon as he reached near the place of occurrence, he saw Appellant causing knife injuries to the victim. He had further stated that P.W. 1 Zahidullah assaulted the Appellant after his brother fell to the ground. Alarm raised by them attracted Aqbar Ali and Abid Khan to the spot. According to him, Zahidullah is 5'' 10" in height. Sajidullah was slightly lower in the height, but was identical to him in the built. According to him, he started from his house (mohalla Katkuiyan) and was passing through mohalla Rajdwara. When his attention was attracted that for the first time he found Appellant assaulting the victim. What transpired before that, he did not witness it. His statement too was recorded by Investigating Officer on the next day. He too did not disclose to Investigating Officer in his Section 161, Cr. P.C. statement that Zahidullah attacked the Appellant with a knife to save his own brother. To explain this, he stated that Investigating Officer may not have written it. He is also an accused in the murder of father of the Appellant. He was suggested that he was not present at the spot. This witness admittedly is inimical to the Appellant. He is friendly with informant. Thus, from the statement of these two witnesses it is clear that the statements of these eye-witnesses were recorded after 24 hours of registration of the F.I.R and there is an omission in their statements to the Investigating Officer about the assault by knife on the Appellant by Sajidullah. It was a subsequent event. This goes to suggest that the F.I.R. apparently was transcribed much after recording of their statements, otherwise these facts would not have been missed in their statements from recording by Investigating Officer or these witnesses would not have failed to mention this fact. This is also established that the version of the Appellant was available to the prosecution before this F.I.R. was registered. The Appellant stated in his version that he was present at his shop where these three persons, the deceased and two of his brothers, came armed with knives and abused him and started assaulting him. He tried to run away to safety but was surrounded and in order to save his life, he plied his knife which struck the deceased. As earlier stated Zahidullah, informant, was on inimical terms with the Appellant. If he would have been present, it was unlikely that the Appellant would not have attacked him even once. None of the two brothers have sustained even a scratch. This circumstance creates serious dent in the prosecution story regarding the manner of assault. It may be probable that between the deceased and the Appellant some marpit may have taken place in which the Appellant had also sustained injuries and the deceased was attacked by him. But so far as these two witnesses are concerned, their version is not supported by any independent evidence.

Our conclusion is further fortified from the fact that the copy of the F.I.R. reached the Surgeon, who was conducting the autopsy, after the post-mortem was commenced. Such a note is there in the post-mortem report in the hand of the doctor and though no question has been put either to the doctor or to Investigating Officer, yet we find it sufficient to take notice of this fact.

In the circumstances, we are not prepared to accept as probable that this F.I.R. was registered at 10.15 a.m. No memo from the civil hospital regarding receipt of the dead body was brought on record. It appears that the victim may have breathed his last on the spot itself and may be on way to the hospital, but he immediately became unconscious is a fact which is admitted to the prosecution witnesses. Normally, when a person arrives at and the doctor attending on him pronounces him dead, a memo is sent to the nearest police station from the hospital. It also contains the name of the person who brought him there. Withholding of any such information from the Court creates serious doubt in our mind regarding the F.I.R. The story with regard to the Appellant calling the three brothers as "Bahadur Aa Rahe Hain" also does not find favour with us. He will not dare to assault these three brothers who have criminal antecedents and had assaulted him in the past. This is yet another circumstance that lends credence to the case of the defence. Non-examination of any witness of the locality despite clear admission that number of shops about the place of occurrence is yet another circumstance which creates reasonable doubt in our mind about the genuineness of the prosecution version. All the witnesses are either partisan or related. Two of them (P.Ws. 4 and 5) are also chance witnesses and admittedly they are residents of places half a mile to two miles away. No special reason for their presence at the spot is disclosed by any of these two eye-witnesses. The other two brothers have not disclosed either in the F.I.R or in their statements u/s 161, Cr. P.C. that they were returning from the house of their uncle after seeing him, since he was ailing. Assault by Sajidullah upon the Appellant is also missing altogether.

In view of these facts and circumstances, we are not in a position to accept the veracity of the statements of these witnesses. Apart from it, their version regarding the manner of assault also appears to us highly doubtful. There is omission of the fact that Zahidullah attacked the Appellant after the assault on his brother came to an end in the statements u/s 161, Cr. P.C. of these witnesses. Zahidullah attacked the Appellant with a knife later on. The other two witnesses appear to us to be of the group of these brothers. In the light of the above discussions, we are of the opinion that the defence version is probablised to a large extent from the prosecution evidence itself and the witnesses apparently had suppressed the genesis of the incident. The version brought forth by them is coloured and it is not possible for us to discard the defence version as wholly false or concocted. The defence version has seen the light of the day promptly and before the prosecution report. No time in its reporting was lost. It is not probable for any accused to cook up a story so quickly at this fast. The prosecution F.I.R. seems to have been prepared long afterwards otherwise why has it been sent to autopsy surgeon later on and received by him after post-mortem was commenced.

An accused, whose life is under a threat, is not expected to measure or count the blows inflicted upon his assailant. In the facts of the present case, it is not easy to do so. His assailants were sturdier in strength and he was alone. Probability suggests that he was assaulted first. It will be, in our opinion, most unsafe to Judge the gravity or the seriousness of assault on him from the nature of his own injuries as argued by learned A.G.A. These are most unusual situations. Prosecution has admitted the assault on accused from their side though subsequent to the assault on the deceased but for the reasons discussed above, we are not inclined to weigh the injuries suffered by warring sides on any golden scale so as to punish this Appellant for exceeding of his right of private defence. It could have been possible if the prosecution would have come with clean hands and produced a wholly truthful version. The failure to examine witnesses of the locality or other independent witnesses further damaged the case of the prosecution.

In the result this appeal is allowed and the Appellant is acquitted. The conviction and sentence of this Appellant for the charge for which he was tried, as referred to above, is hereby set aside. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are hereby discharged.