Sultan Khan vs Farhad and others

Rajeshwar Singh, J.—This is a revision against acquittal filed by the complainant,

The prosecution story was that there was a joint grove of the complainant, deceased Shahdavan, Baqridi and seven opposite parties. There was some dispute about this grove. So a ''Panchayat'' was held in the evening and the ''Panches'' said that the persons concerned should live peacefully and should remain in possession as the\\ are. People went away. At 8 p. m. on the same night that is on 441979 the seven accused persons came armed with lathi and pharsa. They attacked Shahdavan. To save him, complainant Sultan P.W. 1, Smt. Khadija P.W. 2, wife of Baqridi and Baqridi intervened. They also received injuries of blunt weapon. The opposite parties went away. Shahdavan expired after a few minutes. The police station was 8 miles away, so report could not be lodged in the night. It was lodged on the next morning at 8.45 a. m. Then the police made usual investigation including recovery of bloodstained earth from the spot and chargesheet was submitted The accused maintained that they were falsely implicated due to illwill. The Sessions Court acquitted the accused for the offence under Sections 147, 148 323 and 302 read with Section 149 I.P.C. So this revision has been filed by the complainant.

There are three eyewitnesses in this case. They are the complainant Sultan P.W. 1, Smt. Khadija P.W. 2 and Khaliq P.W. 3 The first two are injured. There is medical evidence showing injuries on the persons of these two witnesses and one Baqridi. In the postmortem report injuries were also found on the person of the deceased. These injuries are given below:

Baqridi

Contusion 3 cm X 1 cm on the scalp. 14.5 cm above the right ear. Colour of the contusion was not clear as something was painted. A small 0.2 cm X 0.2 cm scabbed abrasion present in the area of the contusion, colour not clear.

Contusion 4 cm X 2 cm, oblique in direction on there right upper arm, 8.5cm to the elbow joint on the postero lateral aspect. Contusion violet in colour.

Contusion 4 cm X 4 cm on the left upper arm, on the posterior aspect, 11 cm to the elbow joints; contusion violet in colour, surrounded by swelling in the area 10 cm X 12 cm.

Infected lacerated wound 3 cm X 2 cm X boue deep on the right lower leg; margins irregular on the antero medical aspect of the right lower leg, 20 cm below the knee joint.

Complains of pain on the rK,ht said of the chest upper part. No external injury.

Complaints of pain on the right knee joint. No external injury.

Smt. Khadija Khatoon

Infected lacerated wound 7.5 cm X 0.5 cm X scalp deep with irregular margin, semicircular in shape on the left side of the scalp, 6.5 cm above the left ear.

(2) Contusion 8 cm X 5 cm, violet in colour, oblique in direction, 8 cm above the inferior angle of the left scapular region.

(3) Complaints of the pain in the left inguinal region. No. external injury present.

Sultan

(1) Scabbed abrasion 2.5 cm X 0.5 cm. black in colour on the anterior aspect of the left lower leg 15 cm to the left knee joint.

(2) Scabbed abrasion 1.5X0.5 cm on the antero medial aspect of the left lower leg, black in clour, 7.5 cm below the injury No. 1.

(3) Swelling all over the left lower leg and foot more marked in the middle part of the lowerleg.

Shahdavan (deceased)

(1) Contusion over right side of scalp and forehead, 2 cm away from right eyebrow, size 9.5 cm X 5 cm.

(2) Contusion over left side of scalp and face 1 cm away from anterior and of left eyebrow, size 11 cm X 7 cm.

(3) Lacerated wound over front of right leg, 3.5 cm above ankle joint size 3 cm X 1 cm X muscle deep.

(4) Abrasion over back of right shoulder, size 2 cm X 1 cm.

It is very difficult to doubt the presence of the injured witnesses. Injuries may not be manufactured because two of the witnesses have got contusions on their scalp. The delay in F.I.R. was explained in the F.I.R. itself, when it was said that report could not be lodged on account of night One person had died and three others were injured, naturally there must have been fear in going to the police station.

However, the learned trial Court first found fault with the F.I.R. saying that it could not be written in the village as said by the complainant. For this, first reason that it gave that it is written in the F.I.R. that the dead body had been left under the care of family members and the complainant had come for report. According to trial Court this would not have been dictated, had the F.I.R. been scribed in the village. But I do not find any such thing. When the|complainant know in the village that he would go to the police station leaving the dead body under the care of family members, there was no difficulty in dictating the same and getting it written in the F.I.R. Another reason is that according to the complainant, written report was prepared in the village at 2 p. m. by a stranger. This is somewhat improbable, but merely because F.I.R. was not written in the village and it was dictated at the police station, it cannot be said that the evidence regarding actual occurrence given by the witnesses, is false. There seems to be no evidence of the fact that the F.I.R was got prepared after advice by the police.

Then the trial Court said that there is no independent witness. It is common knowledge that these days people are not willing to come forward to give statement against the persons who are powerful out of fear, specially when socalled witnesses do not gain anything from giving evidence. So evidence cannot be rejected simply on the ground that independent witnesses have not been examined but the evidence of the witnesses will have to be scrutinized with a little more caution to find out if they are speaking the truth about the occurrence.

The trial Court then doubted the story regarding Panchayat. It said that no Panch was examined. ''Panchayat'' was not the real point in issue. So to prove it there was hardly necessity for examining a ''Panch'' and the person who came in the witnessbox could depose about this matter. About place of occurrence it has been pointed out that the complainant says that ''Panchayat'' took place in the grove while other witness Khaliq P.W. 3 says that it took place infront of the house of Majid. Firstly, there is nothing to show that there is no grove infront of the house of Majid. Secondly, learned trial Court expressed doubt about the presence of Khaliq P.W. 3 saying that he belongs to another village and he is soninlaw of the deceased. If his presence is doubtful then it would hardly be proper to contradict other witnesses with the statement of this witness Khaliq. Even if Panchayat is disbelieved it would not be possible to discard the prosecution case till the eyewitness account is also discarded for some reason.

Then probability of the occurrence having taken place has been doubted. The argument relied upon is that the accused Shahzad did not raise may objection in the ''Panchayat''; the Panchayat did not give any decision against Shahzad and so he would have not come to attack. When the deceased was disputing the claim of the accused persons and ''Panchayat'' had not given relief to the accused persons, there is noting strange if the accused took it to their head to settle the matter finally by force. Another argument is that the evidence shows that the accused came shouting. The woman witness says that such shouts were heard for 10 minutes. A village woman cannot be much accurate about this period of 10 minutes when the accused wanted to attack openly, there is nothing absurd if they came shouting.

Then medical evidence is said to be against the prosecution case on the point of duration and it is said that injuries could not be received at the time alleged. No doubt medical examination is delayed and for this the trial Court has not said that it was put to the witnesses and the explanation given by the witnesses was unsatisfactory. When injuries were examined, the Doctor gave duration as 23 days or 34 days. The lower limit would have been correct if medical examination would have been made after 810 hours. The Doctor says that there can be difference of 8 hours in the duration that he gave. Under the circumstances, medical evidence cannot be said to be so contrary as to discard the evidence of the injured witnesses.

These are all the arguments. Thus it appears that the evidence of the witnesses have not properly been considered alongwith the entire circumstances and background of the case. It has rather been discarded on conjectures or facts which have a distant connection with the main occurrence. So the accused has not properly been tried and there should be rather retrial of the accused.

The revision is allowed. The judgment of the Court below is set aside and it is directed that the accused be retried.

Revision allowed.