Nawazish Ali and Others vs State

Naseemuddin, J.—This appeal has been filed by Nawazish Ali S/o Bairam alias Bans Ali, (2) Bhullan S/o Abdul Rauf, (3) Sahaj Ram S/o Lautan, (4) Ram Udit S/o Raja Ram, (5) Sukh Din S/o Banwari, (6) Surya Lal S/o Banwari, all residents of village Delwa, police station Malhipur, district Bahraich and by Nizamuddin S/o Pahelwan resident of village Mauliganj, police station Nanpara against the judgment and order dated 18.9.1980, passed by Sri K.D. Shahi, the then Ist Additional Sessions Judge, Bahraich, in S.T. No. 314 of 1978, whereby the Appellants were convicted for the offences punishable u/s 302/149, I.P.C. and were sentenced to undergo imprisonment for life ; Appellant Nawazish Ali was further convicted for the offence punishable u/s 148, I.P.C. and was sentenced for a term of 1-1/2 years R.I. and Appellants Bhullan, Sahaj Ram, Ram Udit, Sukh Din, Surya Lal and Nizamuddin were further convicted for the offence punishable u/s 147, I.P.C. and were sentenced to undergo one year''s R.I. each ; all the Appellants were further convicted u/s 323/149, I.P.C. and were sentenced to undergo 1-1/2 years R.I. each. All the sentences were ordered to run concurrently.

According to the prosecution an occurrence took place in village Ghumni, police station Malhipur, on 4.4.1976 at about 3 p.m. of which F.I.R. was lodged the same day at 8.30 p.m. at P.S. Malhipur by P.W. 1, Gauhar Ali. A case was registered at the police station Malhipur and was investigated by P.W. 6, O.P. Tripathi, S.O. Malhipur and charge-sheet was submitted. Syed Ali alias Monkey succumbed to his injuries. Gauhar Ali, P.W. 1 and Mohammad Yunus, P.W. 3 also suffered injuries. According to P.W. 1, Gauhar Ali the case of the prosecution is that Gauhar Ali along with Syed Ali alias Monkey has 26 bigha land in village Ghumni. That there was litigation in respect of this land in between P.W. 1 and Syed Ali alias Monkey on the one hand and Bans Ali alias Bairam, father of Nawazish Ali, Appellant and Bhullan Appellant on the other hand. Bhullan and Nawazish Ali are the first cousins and Nizamuddin Appellant is the bhanja of Nawazish Ali Appellant. The other Appellants were alleged to be the helpers of each other as they carry on foodgrain business in co-operation with each other. Syed Ali was the nephew of P.W. 1, Gauhar Ali and Mohammad Yunus, P.W. 3 and Mohammad Idris are the bhanjas of Gauhar Ali. Except Niamuddin all the parties to the case reside in village Delwa, whereas Nizamuddin resides in village Mauliganj under another police station. Village Ghumni is about 2 miles north of village Delwa and there is 50 bighas of other land in village Ghumni belonging to P.W. 1. On 4.4.1976 at about 3 p.m. while P.W. 1, Gauhar Ali is nephew of Syed Ali alias Monkey and P.W. 3, Mohammad Yunus, bhanja of P.W. 1 were harvesting the crop of arhar, then Nawazish Ali armed with a ballam and other Appellants armed with lathis came there, and at the exhortation of Nawazish Ali asked the other Appellants to kill these persons. All the Appellants started causing hurt by means of their weapons to P.W. 1, P.W. 3 and Monkey. That Monkey ran towards the field of Masood Ali but he was chased by all the Appellants and Nawazish Ali Appellant stabbed Monkey by means of spear (ballam) in the ankle due to which Monkey fell down and the Appellants caused hurt to him thereafter also. That on alarm and cries P.W. 2, Kandhai Lal and D.W. I, Chongey, Narayan and Sunder alias Kenu came there and saw the occurrence. It was further stated that all the Appellants ran away towards south. P.W. 1 went to his village to bring a bullock cart. In the village Idris told him that all these Appellants had also caused hurt to Idris in the khalihan at 2.15 p.m. the same day, and Idris had also suffered injuries. Bullock cart was taken to village Ghumni. Monkey, the injured was put into the bullock cart. P.W. 1 and P.W. 3 had also suffered injuries. Akbar Ali, brother of P.W. 1 was also taken along with them and all these persons started for the police station. That the condition of Monkey deteriorated on the way to the police station and so the bullock cart was diverted to hospital Malhipur. That near the hospital, Monkey succumbed to his injuries and the doctor was called to examine him, but he declared Monkey dead. Akbar was left with the dead body. Idris, Yunus and P.W. 1 got an F.I.R., Ext. Ka-1 scribed from one Ibrahim Munshi and the same was handed over at the police station. The three injured, namely, Yunus, Gauhar and Idris were sent for medical examination by the police. P.W. 1 stated further that the witnesses Chongey and Sunder have been cultivating the fields of Nawazish Ali and had colluded with the Appellants.

P.W. 6 Om Prakash Tripathi. S.O. who investigated the case proved the lodging of the F.I.R. (Ex. Ka-1) and preparation of its Chick (Ext. Ka-6) by Faujdar Singh, Constable Moharrir, and registering of the case (Ext. Ka-7) and also proved the inquest report (Ext. Ka-8), sketch of the dead body (Ext. Ka-9) and Challan of dead body (Ext. Ka-10). The dead body was sent along with the papers through Constable 429, Qazi Tauhid Hussain for post-mortem to the Headquarters Bahraich. Thereafter the Investigating Officer inspected the spot and also went to village Delwa and recorded the statements of the witnesses Kandhai and Narayan etc. He also prepared the spot map of the place of occurrence (Ext. Ka-11) and also took from the spot blood-stained and simple earth from the plot of Masood Ali and prepared its memo (Ext. Ka-12). P.W. 6 also recovered 21 bundles of harvested arhar crop from the field of P.W. 1 and prepared its memo (Ext. Ka-13) and gave the crop into the custody of P.W. 1. The clothes were sent for chemical examination. Charge-sheet (Ext. Ka-14) was submitted.

The Appellants were charged with the above offences to which they pleaded not guilty and alleged false implication due to enmity and gave possibility that all the injuries might have been caused in Nepal, the border of which is adjacent to the plots of occurrence of village Ghumni. Monkey was alleged to be a criminal.

In defence papers were filed and one of the witnesses named in the F.I.R. was also examined in defence as D.W. 1, Chongey by the accused persons.

Prosecution examined P.W. 1, Gauhar Ali, P.W. 2, Kandhai Lal and P.W. 3, Mohammad Yunus on the factum of occurrence. P.W. 4, Dr. M. Shamim and P.W. 5, Dr. Irshad Ali were examined to prove the post-mortem and injury reports and P.W. 6, is the Investigating Officer who had investigated the case.

Learned Sessions Judge believed the evidence of the prosecution and rejected the defence and convicted and sentenced the Appellants as above. Feeling aggrieved the present appeal has been filed.

The learned Counsel for the Appellants and learned A.G.A. were heard in detail and the record of the trial court was also thoroughly perused.

All the three witnesses of the factum of occurrence gave the story of the prosecution. The Doctors proved the injuries which may be given below in detail. Post-mortem of Syed Ali alias Monkey was conducted on 6.5.1976 at 5 p.m. and following ante-mortem injuries were found by Dr. M. Shamim on the body of the deceased:

(1) Lacerated wound 3 cm. ? 1.5 cm. ? scalp deep on right side of head 5 cm. above left eye brow.

(2) Abrasion 1 cm. ? 1 cm. on right side of face, 1 cm. outer to outer end of right eye.

(3) Contusion 4 cm. ? 1 cm. on top of right shoulder joint.

(4) Contusion 7 cm. ? 3 cm. on outer side and middle of right upper arm.

(5) Contusion 3 cm. ? 2 cm. on back and middle of right upper arm.

(6) Contusion 10 cm. ? 4 cm. on back of right elbow joint.

(7) Contusion 6 cm. ? 2 cm. on back and inner side of right side of right forearm with fracture of ulna bone in middle portion.

(8) Contusion 7 cm. ? 3 cm. on dorsum of right hand.

(9) Contusion 4 cm. ? 3 cm. on left clavicular region.

(10) Contusion 8 cm. ? 4 cm. on outer side of right elbow.

(11) Contusion 4 cm. ? 2 cm. on back of left forearm just below elbow joint.

(12) Contusion 6 cm. ? 3 cm. on back and middle of left forearm.

(13) Contusion 7 cm. ? 3 cm. on dorsum of left hand.

(14) Lacerated wound 2 cm. ? 0.5 cm. ? muscle deep on back left little finger.

(15) Contusion 8 cm. ? 3 cm. on back of left thigh lower third.

(16) Punctured wound 1.5 cm. ? 1 cm. ? bone deep on front and upper of left leg with tibia bone broken.

(17) Contusion 7 cm. ? 2 cm. ? muscle deep on tip of left second toe.

(18) Lacerated wound 1 cm. ? 2 cm. ? muscle deep on tip of left second toe.

(19) Lacerated wound 4 cm. ? 2 cm. ? muscle deep on inner side of left ankle joint.

(20) Contusion 9 cm. ? 2 cm. on back and upper part of left leg.

(21) Contusion 4 cm. ? 2 cm. on lower part of right buttock.

(22) Contusion 8 cm. ? 3 cm. on back and lower part of right thigh.

(23) Contusion 8 cm. ? 4 cm. on front of right thigh.

(24) Contusion 6 cm. ? 3 cm. on dorsum of right foot.

(25) Contusion 6 cm. ? 3 cm. on dorsum right foot.

(26) Multiple contusions in an area of 18 cm. ? 16 cm. on right scapular region.

(27) Contusion 16 cm. ? 2 cm. on left side of back just below scapular region.

(28) Contusion 10 cm. ? 2 cm. on upper part of right buttock.

On internal examination fissured fracture of left parietal and frontal bones were found under injury No. 1, Membranes were congested and haematoma was present. Similarly brain was congested and was liquified. The intestines were partially filled with faecal matter. Small intestines and stomach were empty. Cause of death was shock and haemorrhage as a result of ante-mortem injuries.

Dr. Irshad Ali found the following injuries on the body of Gauhar Ali on 4.4.1976 at 11.15 p.m.

(1) A bruise 22 cm. ? 2 cm. obliquely present on left side of back, upper and pointing towards left shoulder joint.

(2) A bruise 20 cm. ? 2 cm. on right side of back upper and pointing towards right shoulder joint and lower end of bruise crossing injury No. 1.

(3) A bruise 14 cm. ? 2 cm. obliquely present in the right side of middle one third of back.

(4) A bruise horizontally present on the back of right upper arm in the middle measuring 4 cm. ? 1 cm.

(5) A bruise 5 cm. ? 2 cm. obliquely present on the back of right upper arm 3 cm. above injury No. 1.

(6) A bruise 7 cm. ? 2 cm. obliquely present on back of left upper arm in its middle one-third.

All the injuries were found to be simple caused by blunt object and were half day old.

The same doctor found the following injuries on the same day at 11 p.m. on the body of Mohammad Yunus:

(1) A bruise 7 cm. ? 1 cm. vertically oblique present on the back of left forearm associated with swelling and tenderness.

(2) A subcutaneous haematoma 4 cm. ? 4 cm. on right side of frontal head. Underlying fracture suspected.

The injuries were simple and were caused by blunt weapon and were half day old.

The doctor had also informed about the death of Syed Ali alias Monkey vide Ext. Ka-5. He informed the S.O. Malhipur that the deceased was brought dead to the hospital at 7.30 p.m. on 4.4.1976.

The learned Counsel for the Appellants argued that the case of the prosecution should be thrown away on the ground that the F.I.R. in the case appears to be a got up ante-timed and fabricated document and the accused persons have been falsely implicated in the case after deliberations, and that the delay in lodging the F.I.R. was tried to be concealed by keeping the chik register open and by ante-timing it. It was argued that this has resulted in concoction of the case against those, who were, in the opinion of P.W. 1, nearest to the co-Appellants or were against the prosecution witnesses due to some reason, including being the witnesses against them and being the witnesses in favour of P.W. 1. It has been found above that on the factum of occurrence the prosecution examined P.W. 1, Gauhar Ali, informant/injured, and P.W. 3, Mohammad Yunus, injured, who is nephew of P.W. 1 and third person P.W. 2, Kandhai Lal. The other witnesses of factum of occurrence viz. Ram Narayan, Sunder and Chongey (D.W. 1) were not produced in evidence by the prosecution. These witnesses were mentioned in the F.I.R. to have witnessed the occurrence. The main Appellants Nawazish Ali and Bhullan and P.W. 1, Gauhar Ali are the first cousins, being the grandsons of one man. Nizamuddin, Appellant is bhanja of one of the Appellants Nawazish Ali and has got nothing to do with the village of occurrence Ghumni or with the village of residence of the parties viz. village Delva. The other Appellants, namely, Sahaj Ram, Ram Udit, Sukh Din and Surya Lal are not at all related to the other three Appellants or the victims. The deceased Syed Ali alias Monkey was the bhatija (Nephew) of P.W. 1. It is not disputed that there was enmity between the Appellants Nawazish Ali and Bhullan on the one hand and Gauhar, P.W. 1, and the deceased on the other hand due to litigation with respect to the agricultural land of village Ghumni. A case was fought between the father of Nawazish Ali and P.W. 1, Gauhar Ali. In that case of 1972-73 the Appellant Ram Udit had given evidence against Bairam, the father of Nawazish Ali who had won the case ; and the appeal was pending at the time of occurrence. P.W. 1, Gauhar Ali had also prosecuted Nawazish Ali, Bhullan and Sahaj Ram, the Appellants for committing theft of the crop of the disputed field but these Appellants had won the case and were acquitted. Similarly Nawazish Ali, the Appellant, had also prosecuted Syed Ali alias Monkey, the deceased for theft u/s 379, I.P.C. In that case of theft of crop P.W. 1, Gauhar Ali and Idris etc. were also accused along with others. In another case of theft launched by Ram Lakhan against P.W. 1, Gauhar Ali and the deceased etc. Sahaj Ram and Bhullan were named as prosecution witnesses and had later on also given evidence accordingly. Therefore, there was enmity in between the parties that could be the cause of the occurrence ; and similarly this could also be the cause of the false implication and concoction. According to the prosecution Ram Udit, Sukh Din and Sahaj Ram as well as Surya Lal were on good terms with the other Appellants.

D.W. 1 Chongey, a witness named by the informant in the F.I.R. to have seen the occurrence, stated on oath that he was not at all present on the spot at the time of the alleged occurrence. D.W. 1 further stated that P.W. 2, Kandhai, who was named as a witness in the F.I.R., has got no land in village Ghumni where the occurrence is alleged to have taken place. D.W. 1 further stated that P.W. 2, Kandhai is simply a servant of P.W. 1, Gauhar Ali and works for him in the field. It was stated by P.W. 1, Gauhar Ali that Kandhai had been working in the field of Kandhai at the time of occurrence and had seen the occurrence from there. P.W. 2, Kandhai stated that he has the land in his possession on mortgage which actually belongs to another person named Shamsher Sain. P.W. 3, Mohammad Yunus, the injured, however, admitted at a later stage in his cross-examination that Kandhai (P.W. 2) actually works as a servant on the field of P.W. 1, Gauhar Ali. Therefore, this witness Kandhai was proved to be the man of P.W. 1, Gauhar Ali and had no land of his own there on the spot. The other witnesses named in the F.I.R. to have seen the occurrence were not produced by the prosecution. One of the witnesses, mentioned in the F.I.R. was examined by the defence as D.W. 1. Excluding all these persons there remains only P.W. 1, Gauhar Ali and his sister''s son P.W. 3, Mohammad Yunus. Idris has not been produced. Kandhai, P.W. 2 does not appear to be present on his alleged non-existent plot because he does not own any plot of land of his own and because he has been proved by D.W. 1, Chongey that P.W. 2, Kandhai was not at all present at the time of occurrence or near the place of occurrence. P.W. 1 is admittedly litigating with the two Appellants, namely, Nawazish and Bhullan and they have enmity because a litigation on this land is still going on in between these persons at the appellate stage. Criminal cases were also fought on either side with respect to the crop of the land of village Ghumni. Under these circumstances the evidence and the material on record has to be looked with care, particularly when Nizamuddin, the Appellant belongs to another village and is related as a bhanja to the Appellant Nawazish Ali and particularly when other Appellants are unconnected with Nawazish Ali and Bhullan and those Appellants have got no interest in the land and have got no interest with the dispute in between Nawazish Ali and Gauhar Ali. Those other Appellants have got no community of interest with Nawazish Ali and Bhullan so as to co-operate in committing murder. Some of the Appellants had appeared as witnesses for and against Nawazish Ali in the dispute of theft of crop. There is, therefore, every possibility of the false implication of Nizamuddin and other Appellants, namely Ram Udit, Sahaj Ram, Sukh Din and Surya Lal. Under these circumstances also greater caution is required while conducting the merit of the case with the material available. The intrinsic worth of evidence is required to be looked into.

The occurrence took place, according to the prosecution at about 3 p.m. on 4.4.1976. The F.I.R. was lodged by P.W. 1 at Police station Malhipur, the same day at 8.30 p.m. police station Malhipur is about four miles away from village Ghumni. Syed Ali alias Monkey is said to have been brought dead to the hospital Malhipur at about 7.30 p.m. The hospital Malhipur is only 2 furlong away from the police station Malhipur. According to the injury reports Gauhar Ali and Mohammad Yunus were examined at the hospital Malhipur at about 11.15 p.m. and 11 p.m. respectively on 4.4.1976. The inquest report was prepared by P.W. 6, O. P. Tripathi, S.O. beginning from 7 a.m. to 9.30 a.m. on 5.4.1976. The dead body was sent from the hospital Malhipur to the Headquarters Bahraich the same day. It was mentioned in the inquest report that the papers viz. inquest report etc. and the copies of G.D. and F.I.R. were also being sent along with the dead body through constable Qazi Tauhid Hussain. The dead body was received at the Headquarters at 7.30 p.m. on 5.4.1976. However, no papers were handed over at the time of delivering the dead body to the Dy. C.M.O. by the constable. The papers were received by the doctor at the Headquarters, the next day on 6.5.1976, at about 12 in the noon. The post-mortem was held on 6.4.1976, at 5 p.m. There is no explanation as to why the papers were not delivered at the Headquarters along with the dead body and as to why the papers were retained. The papers, admittedly were not received on 5.4.1976 and were received on 6.4.1976. That is to say that the dead body was received a day earlier and the papers were given the next day on 6th of April, 1976. There is an endorsement by the Deputy C.M.O., Bahraich, on the Challan Lash to this effect under his signature. The inquest report Ext. Ka-8 mentioned that the dead body was being sent along with all the papers through constable. Learned Counsel for the Appellants submitted that the scribe of the F.I.R. (Ext. Ka-1) Ibrahim Hussain was not produced in the witness box. He also submitted that the writer of the Chik of the F.I.R. Constable Moharrir Faujdar Singh was also not examined on behalf of the prosecution in this case. The date of the F.I.R. was mentioned to be 5.4.1976 initially. But this date later on was overwritten as 4.4.1976. This is visible to the naked eye. The F.I.R. was alleged to have been written and taken down in the chik register on 4.4.1976 at 8.30 p.m. If the F.I.R. had been written on 4.4.1976, then the date would not have been written as 5.4.1976. At another place in the F.I.R. 4.4.1976, was mentioned without overwriting which obviously was due to the reason that the F.I.R. could be alleged to have been written on 4.4.1976. It was argued that since 5.4.1976 was clearly written initially at the appropriate stage and that it was later on corrected by overwriting as 4.4.1976, without any attestation of correction and without any initial, therefore, this must have been explained by the writer of the F.I.R. Ibrahim Hussain or by the constable Moharrir Faujdar Singh. These two persons were not at all examined. Therefore, the learned Counsel argued that actually no F.I.R. existed on 4.4.1976 or even on 5.4.1976 and the F.I.R. was actually prepared after due deliberations on 6.4.1976. Seeing the receipt of the dead body on 5.4.1976 and seeing the receipt of the papers by the Deputy C.M.O. on 6.4.1976 the argument of the learned Counsel for the Appellants carries force. P.W. 5, I.O. admitted that there was overwriting on the date of writing of the F.I.R. in the written F.I.R., Ext. Ka-1 and this fact is very much apparent and is visible to the naked eye also. The trial court had found in an earlier case decided by himself that Ibrahim Hussain was a pet scribe of the F.I. Rs. and used to write F.I. Rs. for the police. The police had been utilising him for writing the F.I. Rs. The dead body reached the Headquarters late in the evening on 5.4.1976 and the papers reached the Headquarters on 6.4.1976 and that too at about 12 in the noon and these papers were given on the third day of the lodging of the F.I.R. The special report to the authorities also was not sent on 4th or 5th April, 1976. It would be found that Ext. Ka-10 (Aarakshak Form No. 13-Challan Lash) does not at all bear the crime number of this case. Similarly no case number is mentioned on police Form No. 379 (Sketch of the dead body) Ext. Ka-9. On the inquest report Ext. Ka-8, also on the top no case number is mentioned as is usually done, although it was mentioned inside. Under these circumstances the argument that the F.I.R. was ante-timed as it did not exist at all on 4.4.1976 and 5.4.1976 cannot be lightly brushed aside, rather it is to be inferred in all fairness. Had the papers been sent along with the dead body and had the papers viz G.D. etc. were in existence and had the challan lash been written at the time of despatch of the dead body, then these papers would have been delivered to the Deputy C.M.O. at the time of the delivery of the dead body to him. The case crime number was not mentioned on the challan lash because it did accompany the dead body. Therefore, it is clear beyond doubt that the F.I.R. had not been taken down and was not in existence on 4th and 5th of April, 1976. It appears to have been prepared after deliberations and was ante-timed. This thing is important in the instant case where the defence is that the Appellants were falsely implicated due to enmity, and in case where a possibility was given by the Appellants that the deceased and the two other injured might have been beaten elsewhere on the soil of Nepal, the boundary of which is adjacent to the field of village Ghumni, where the occurrence is alleged to have taken place. It is so near that a police station of the State of Nepal is visible from the place of occurrence according to the prosecution witnesses. Needless to say that where the F.I. Rs. are ante-timed, and where there is delay in lodging the F.I.R. then concoction and false implication cannot be ruled out, rather there was much possibility of preparing the F.I.R. after deliberation. This is fatal to the cace of the prosecution.

It is alleged that Sri O. P. Tripathi, P.W. 6, who was the S.O. had collected the samples of simple and blood-stained earth from the field of Masood. But these two samples of earth were not produced before the Court and were not at all exhibited. The memo of taking this earth (Ext. Ka-12) was alleged to have been prepared on the spot. Below the signatures of S.O. Sri O. P. Tripathi instead of the designation ''S.O.'' designation has been mentioned to be ''S.I.'' On other papers including the inquest report the ''S.O.'' has given his designation as ''S.O.'' and not as ''S.I.'' It was suggested to the witness P.W. 6 that it was so because these papers were prepared later on when Sri Tripathi had been transferred as S.I. to another police station. In the memo Ext. Ka-12 aforementioned one Tulsi Ram and one Kripa Ram Muray have been shown to have signed and to have put the thumb impression as the witnesses of the taking of the earth from the spot. None of these witnesses were produced in the witness box nor P.W. 6 or any other witness proved that these two persons had signed or put their thumb-impression on Ext. Ka-12. P.W. 1, Gauhar Ali stated that he was present on the spot when the sample of earth was taken. His signatures were not taken on this recovery memo. He also does not prove the signature and thumb-impression of these alleged persons. Under these circumstances it becomes highly doubtful whether such earth was at all taken by the I.O. from the spot. This was a material thing because this would have fixed the place of occurrence. This is also fatal to the case of the prosecution because by this lapse prosecution can be said to have failed to prove that the occurrence took place at the place where it is alleged to have taken place. Moreover, it would be found that there are statements of the witnesses that they had been harvesting crop by means of sickles and axe etc. The witnesses also stated that they had left the hansia-sickles and kulhari-axe on the spot. These things were not taken into custody by the I.O. These things could have shown prima facie that the alleged eye-witnesses were actually harvesting the crops at the relevant time at the fields where the occurrence took place. There is no explanation as to why these things were not taken into possession and as to where these things have gone. The witnesses are also unable to give any reason as to why they did not use these sickles and axe in self-defence. Seven persons were alleged to be inflicting lathi and ballam blows and instead of defending by these sickles and axe the witnesses say that they left these things without using them and threw them on the field. This lapse also makes it doubtful whether the occurrence took place at the alleged place of occurrence. This thing is material when the matter of ante-timing of the F.I.R. is gone into. This shows that actually the occurrence was not seen by these alleged eye-witnesses and the occurrence did not take place in the manner as alleged by the prosecution.

Under these circumstances the nature of injuries of all the three injured also becomes material. Except for injury No. 1 on the head of the deceased none of the injuries in itself was sufficient in the ordinary course of nature to cause the death of the deceased. The nature of the injuries of the two injured persons also shows that there was no intention to cause the death or to cause such bodily injury which was likely to cause death. The injuries of the deceased do not indicate that there was any intention to commit murder of course when injury No. 1 is excluded. It may be seen that although the star assailant Nawazish Ali was studded with a ballam but there is no injury of ballam on the body of the two injured persons, and there was also no injury of ballam on any vital part of the body of the deceased. The deceased had only one ballam injury on the leg. From the very beginning of the occurrence the allegation was that ballam (spear) was used and lathis were also used. It was alleged that ballam and lathi wielding persons started causing injuries to the three victims by these persons by means of this stabbing weapon and it was only after the alleged chase to the field of Masood that only one ballam injury was alleged to have been inflicted on the leg of the deceased. The belated explanation/improvement came out in the evidence only and it was stated that Nawazish Ali used the ballam as a lathi viz. the ballam was used not from the side of spear but was used from the blunt side. But this is clearly an improvement because this fact was never alleged in the F.I.R. and was also never alleged in the statement recorded by the I.O. u/s 161, Cr. P.C. The doctor has given the possibility of the injury having been suffered by a margin of about 5-6 hours either way from the time of the alleged occurrence. These facts indicate that the injured did not suffer the injuries at the hands of these persons. If these persons had any intention to commit the murder, then the ballam would not have been used from the blunt side and would have been used from the stabbing-spear side. If the witnesses had seen the occurrence then they would have stated from the beginning in the F.I.R. as well as before the I.O. that the ballam was used as lathi from the blunt side. The improvement was thought out after the injury reports were perused and it appears to be clearly an advised statement. The assailants appear to be interested only in causing injuries. The probability in the margin of time in suffering the injuries also show that the time of the occurrence is also doubtful and this may be connected logically with the reason of ante-timing of the F.I.R.

This is so because there does not appear to be any immediate provocation motive, cause or reason to commit the offence on that day, and to form an unlawful assembly of seven persons, who had no common interest, no community of purpose or reason to cause or attempt to cause the death or injuries. The genesis of the occurrence was not at all proved and no evidence was led in this connection. The genesis of the initial occurrence was alleged to be the beating of Idris, the brother of P.W. 3 and bhanja of P.W. 1, 45 minutes earlier than the start of the main occurrence. The genesis could have been proved in this case by producing Idris in the witness box and also by proving his injuries. That occurrence is alleged to have taken place at 2.15 p.m. Idris only could have proved that occurrence. P.W. 5, Dr. Irshad Ali while proving injuries of P.W. 3 had not the benefit of the presence of P.W. 3 before him in the Court. The doctor also did not prove the marks of identification of P.W. 3 while stating about his injuries. The doctor also did not mention the colour of injuries in the two medical reports Ext. Ka-3 and Ext. Ka-4. According to the opinion of the doctor there could be difference in the duration of the injuries to the extent of 4 to 5 hours either way. According to the post-mortem report Ext. Ka-2 the stomach and small intestines of the deceased were totally empty, and big intestine was only partially filled with faecal matter. There were no gases at all. In view of these things the first occurrence must have been proved and Idris should have been produced in the witness box and his injuries should have been proved. There was, therefore, no reason for the accused to have suddenly acted in the manner as alleged by the prosecution. In view of this it can safely be said that the accused persons were falsely implicated because of enmity and they were named in the F.I.R. after due deliberation.

The two witnesses named in the F.I.R. were not produced on the ground that they had been won over. The third named witness appears from the side of the defence and the fourth person Kandhai was proved to be the servant of the Gauhar Ali and had no land of his own there. Therefore, there was clear absence of independent witnesses to prove the case. The facts and circumstances of the case demand that the witnesses of factum of occurrence be disbelieved outright. They are accordingly disbelieved.

Learned Counsel for the Appellants took the Court through the entire evidence and pointed out a number of infirmities in the case but in view of the above fatal defects, other points need not be laboured. The interested statements of the witnesses have been disbelieved. The learned trial court dealt with all the arguable points in the case but we are not inclined to ignore the factum of ante-timing of the F.I.R. and concocted facts discussed above in detail. The learned trial court should have disbelieved the evidence of the prosecution. The accused had given a possibility about the injuries having been suffered in Nepal. The accused could simply give a possibility but were not legally bound to prove the manner in which the injuries were suffered.

In view of what has been said above the prosecution fails to prove the case against the Appellants. The learned trial court, therefore, should have held the Appellants not guilty and should have acquitted them. The Appellants are, therefore, not found guilty of the charges of committing murder or committing riot etc. framed against them. They are entitled to acquittal and shall be acquitted accordingly. The appeal has got force. The appeal is allowed. The conviction and sentences under appeal are set aside and the Appellants are acquitted of all the charges framed against them. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged and they need not surrender to their bail bonds.