Sanjay Kumar Gupta JUDGMENT
Sanjay Kumar Gupta, J.
1. This Criminal Appeal is preferred by the appellants-Mohd Ashraf and Mehtab Din, who have been convicted by the learned Sessions Judge, Poonch, vide impugned judgment dated 31.03.2004, and sentenced to undergo rigorous imprisonment for a term of three years under sections 324/34 RPC and to pay fine of Rs. 5000/- each and in default of payment of fine, the accused would further suffer rigorous imprisonment for one year.
2. Learned counsel for the appellants has challenged the impugned judgment of sentence on the ground that the same is against law and facts of the case. The prosecution in order to prove its case had produced as many as 08 witnesses, whereas the defence counsel has produced only one witness. Learned counsel for the appellants submitted that the trial court has committed an error while convicting the appellants for offences punishable under sections 324/34 RPC as the guilt has not been brought home to the appellants at all; that the Court below has not properly appreciated the evidence brought on record. All the witnesses, who have deposed against the appellants, are in fact interested witnesses; that the trial court has taken into consideration the circumstances, which have never been put to the appellants in terms of section 342 of Cr.P.C. It is further stated that the Investigating Officer has not been produced during the trial to sustain the charge. Therefore, a very important and material prosecution witness and the author of the case has not been produced, who could have thrown light to his case. It is further argued that there was a personal enmity between the parties and a counter case was also filed by the appellants against the victim which was challenged before the Court below under section 452 RPC. However, on account of a compromise that challan was not pressed; that there is no chain of evidence of appellants' connecting with the commission of offence and the expert opinion with regard to the weapon of offence has not been supported by the prosecution, which also goes against the plea of prosecution.
3. On the basis of aforementioned submissions, learned counsel for the appellants has prayed that the instant appeal be allowed and the impugned judgment of sentence be set aside. In support of his submissions, learned counsel for the appellants has placed reliance on the judgments of the Supreme Court in the cases titled Lakshmi Singh v. State of Bihar, reported in MANU/SC/0136/1976 : 1976 AIR (SC) 2263; and T.T. Antony and another vs. State of Kerala and Ors., reported in MANU/SC/0365/2001 : 2001 AIR (SC) 2637 and judgment of High Court of Patna in the case titled Sarjug Pd. Singh and Ors. Vs. State of Bihar, reported in MANU/BH/0209/1983 : 1984 CriLJ 1086 and judgment of High Court of Orissa in the case titled State of Orissa vs. Sarat Chandra Puri., reported in MANU/OR/0130/1989 : (1990) CriLJ 814.
4. Per contra, learned State counsel has supported the impugned judgment of sentence stating that the same has been passed after appreciating the evidence available on record by the learned trial Judge and no other view is possible than what has already been taken by the Court below.
5. The case set up by the prosecution, briefly stated, is that on 18.06.1994, the authorities of Police Station, Mendhar recorded the statements of the injured persons, namely, Mohd. Kabir and Faizu Khan in the Sub District Hospital, Mendhar and on the basis of these statements, a case for offences under sections 307/34 RPC was registered at Police Station, Mendhar vide FIR No. 128/1994 and investigation commenced.
6. The allegation against the accused as disclosed from the prosecution case are that on 18.06.1994 at about 6.30 a.m., when the grandfather of the injured, Mohd. Zahrid went to his field and found that it had not been watered (irrigated) and asked the accused to assign cause as to why they had diverted the course of water towards their land on which both the accused beat him, whereafter Mohd. Zahrid along with his uncle Mohd. Kabir went on the spot to find out as to what had happened. On this, the accused animated with a common criminal intention, armed with axes and lathies attacked them at Kota, Tehsil Mendhar. The accused, Mohd. Ashraf committed murderous assault on Mohd. Zahrid and hit him on the right hand wrist, as a result whereof his bone got fractured because of the cut injury. The accused, Mohd. Ashraf committed a murderous assault on his uncle and in this process the palm of his left hand got injured. The accused Mehtab Din beat both of them with fists and blows. The Police after completion of the investigation filed the charge sheet against the appellants.
7. Accused persons denied the charges framed by the Court and claimed to be tried. Prosecution examined as many as 08 witnesses, namely, Mohd. Zahrid, Mohd. Kabir, Faizu Khan, Mohd. Taj, Safeer Ahmed, Mohd. Shabir, Mohd. Latief and Dr. Mumtaz Hussain Shah, BMO, whereas the appellants examined only one witness, namely, Najam Din.
P.W. 1-Mohd Zahrid in his examination-in-chief by the Public Prosecutor has stated that he knows the accused present in the Court. Faizu Khan is his grandfather. On 18.06.1994, a quarrel ensued between them because his grandfather and the accused had made the distribution of water equally towards their respective fields but the accused stopped the flow of their water and diverted the same to their own land. In the morning, when his father went to the field, he found it dry and accordingly asked the accused as to why they had stopped the water on which the accused started beating his grandfather with fists and blows. On hearing the hue and cry, he and his uncle went to the spot. The accused took lathies and axes from their Dhara and at the first instance they tried to inflict injuries on his head. He tried to save his head but sustained an injury on his arm which was cut. With the second assault, the hand of his uncle was injured. They were treated at Mendhar Hospital and were later on referred to Hospital at Rajouri. The Police recorded his statement on 19.06.1994.
On cross-examination, he has stated that he did not see the weapon of offence. He has not lodged any report in the Police Station because he turned unconscious at the spot. He came to senses in the hospital after he was given treatment, where-after, he filed an application in the Police Station, which was reduced into writing by some petition-writer. He could not sign it because his hand was injured.
PW 2-Mohd Kabir has deposed in his examination-in-chief that he knows the complainant, who is his nephew. The accused are also known to him. About 2 ¼ years ago, they made distribution of water in their fields. A day prior to the occurrence his father went to his land, where he found that the accused had diverted the water from his field. Their father asked the accused as to why they had done so. On this, the accused assaulted his father, who raised a hue and cry, which attracted him and the complainant towards the spot. The accused Mohd. Ashraf, who was armed with an axe inflicted him a blow with the same. He tried to save himself due to which his hand was badly injured. The accused thereafter inflicted the injuries upon the complainant with the axe, who intended to inflict the injury on the head of the complainant but the same was stopped by the complainant with his right arm, which was injured. The accused Mehtab Din beat him and the complainant with lathi. Mohd. Taj, Mohd. Safeer and Mohd. Shabir reached on the spot and on seeing them the accused fled away. The accused produced the lathi and axe to the Police and thereafter, seizure memo was prepared, which was marked as EXPW MK-1.
On cross-examination by the counsel for the accused, the witness stated that a case against him, his father and brother was filed by the accused Mohd. Ashraf, which is pending disposal in the Court of Munsiff, Mendhar. The said case was filed on the very day of the occurrence with regard to the theft, in which five persons have been arrayed as accused. In that case the accused are the prosecution witnesses. It is stated that there was hue and cry on the spot. It is further deposed that he remained admitted in the hospital for 8 days, whereas the complainant remained admitted in Rajouri for 15 days. The Police came on the spot in the evening. Axe was not seized in his presence and his signatures were obtained in the hospital, therefore, he cannot say as to from which place the accused brought the lathi and the axe. He remained unconscious in the hospital for two days and thereafter in a semi conscious state for a day. His statement was recorded by the Police.
PW-3 Faizu Khan has stated that he knows the accused and the complainant, who is his grandson. About 2 ½ years ago after diverting the course of water to his land, he went to his house. The water was equally distributed from the tributary to his land and to the land of the accused, which is adjoining to their land. Early in the morning, when he came to his field he found that his field was dry as the water had been diverted in toto towards the land of the accused, which was done by the accused Mohd. Ashraf. When he enquired from the accused, he assaulted him. On being raising a hue and cry, his son, Kabir and grandson, Mohd. Zahrid reached on the spot. The accused Ashraf had an axe with him and he tried to inflict an injury with the said axe on the head of his son. He saved his head with his hand as a result whereof his hand got injured. The accused Mohd. Ashraf also tried to inflict an injury with the axe on the head of his grandson, Mohd. Zahrid who while saving his head received the blow on his left arm due to which the arm was fractured. On cross-examination by the counsel for the accused, the witness stated that the water of the tributary firstly passes through his land and thereafter irrigates the land of the accused. The prosecution witnesses except Mohd. Taj are his relatives and family members. The occurrence took place in his land. He does not know whether the accused Ashraf was injured or not. It is also wrong to suggest that Zahrid was having Pathi with him and injured the accused Ashraf.
PW-4 Mohd. Taj has stated that he knows the accused as well as the complainant. On the request of Public Prosecutor, the witness was declared hostile and on cross-examination by the PP, the witness stated that it is wrong to assert that there has been any dispute on land between the parties. It is, however, correct that the scuffle took place on the distribution of water. It is also true that both the parties were armed with lathies. On cross-examination, he has stated the he did not see the parties fighting. The Police had already reduced the papers into writing and his signatures were obtained and he does not know what were the contents thereof. PWs Mohd. Kabir, Safeer Ahmed and Mohd. Latief came on spot and thereafter he left the place of occurrence.
PW-5 Safeer Ahmed has deposed that he knows the accused as well as the complainant. On the request of PP, this witness was declared hostile and allowed to be cross examined. On cross-examination, he has stated that he is a Teacher by profession and, as such, usually at 6 or 7 in the morning he goes to take the bath. The place of occurrence is in front of his house. The accused were not present on spot, however, the hand of Zahrid was cut and was severed. There is a dispute between the parties on the distribution of water and he heard that this lead to a scuffle between them.
PW6-Mohd Shabir has stated that his land and the land of the complainant and that of the accused are situated adjacent to each other and there is a boundary in between these lands. Due to the distribution of water, the occurrence took place on that day. When his father came to the field, he found that the field of the accused had been irrigated and their land was dry. The PWs Mohd. Zahrid and Mohd. Kabir were beaten by the accused. The accused, Mehtab Din was having a lathi in his hand and beat them, whereas the accused Mohd. Ashraf inflicted injuries with an axe at the arm of Mohd. Zahrid was cut. The accused Mohd. Ashraf produced the axe, which was seized and he put his signatures on the seizure memo, which is marked as EXPW MK. The Police also seized the blood stained clay and prepared the seizure memo.
On cross-examination by the counsel for the accused, the witness deposes that the complainant is his nephew and PW-Kabir and PW Faizu Khan are his brothers. It is correct that accused have lodged a report against the PW Faizu and rest of the prosecution witnesses which is pending in the Court of Munsiff. The axe is of common kind which is usually found in the houses. The lathies were seized in his presence and he cannot identify them.
PW-7 Mohd. Latif stated that the scuffle took place between the parties. He went at the spot on the next day. In his presence the Police took the blood from the spot and nothing else was seized in his presence. On the request of the PP, the witness was declared hostile. Nothing incriminating against the appellants could be elicited even from his cross-examination.
PW 8 DR. Mumaz Hussain has stated that on 18.06.1994, he was posted as B.M.O., Mendhar. On the same day, he examined Mohd. Zahrid S/o. Mohd. Gufar R/o. Gotan, Tehsil Mendhar, brought by the Police Mendhar and found the following injures on his person:-
I) Incised wound on right forearm near wrist-joint with underlying fracture of the bone.
II) Tenderness on rest of the body.
Meanwhile, the case was referred to the Orthoepadic Surgeon, District Hospital, Rajouri for treatment of fracture.
He has also examined Mohd. Kabir S/o. Faizu Khan on the same day and found the following injury:
(i) Wound on left hand palmer aspect thiner eminence measuring 2" x ½" with profuse bleeding.
In his opinion, the injury No. 1 is simple in nature and caused by sharp weapon. The certificate EXP DR. MH/1 is in his hand and bears his signature. He has opined that injury No. 1 sustained by Faju can be by sharp edged weapon produced before him. Regarding other injuries, he has opined that those can be caused by sticks. On cross-examination, he has stated that he has simply on the basis of injuries gave his opinion about the weapon of offence that such injury is possible by fall on a sharp edged object.
The statements of the accused as required under section 342 CR.P.C. were recorded, who denied the allegations leveled in the prosecution evidence in toto and submitted that the prosecution witnesses are false, interested and related. In order to prove their innocence, the accused examined Dr. Najam Din as defence witness, whose statement reads thus:-
DW-Najam Din as a defence witness stated that he knows the parties to the case. In the month of Zeth, Har of 1996, no untoward act was committed by the accused. The complainant on account of enmity over the land has filed the present false case against the accused persons.
On Cross-examination by the PP, the witness stated that he does not know as to how much of the hand of Zahrid was injured. He did not hear that Zahrid was ever injured.
8. Learned trial Court after appreciating the evidence on record and placing reliance on various pronouncements, has observed that there is no doubt left to hold that the accused persons on 18.06.1994 at Kota animated with common criminal intention when the complainant asked the accused to assign reason for diverting the water of the tributary shared between them, the accused beat him with fists and blows and thereafter the accused Mohd. Ashraf inflicted a deep cut injury on the wrist of the right hand of PW Mohd. Zahrid and also caused injury on the right hand palm of PW Mohd. Kabir with an axe and the accused Mehtab Din beat them with lathies thereby voluntarily causing hurt with sharp edged weapon to them and trial court was of the opinion that the case of the prosecution squarely falls within the ambit of scope of sections 324/34 RPC and accordingly, convicted the accused for commission of offences under sections 324/34 RPC and sentenced them to undergo rigorous imprisonment of three years and to pay fine of Rs. 5000/- each. In default of payment of fine, the accused would suffer rigorous imprisonment of one year.
9. Heard learned counsel for the parties and perused the record with the assistance of learned counsel for the parties.
10. Prosecution case is that on 18.06.1994 at about 6.30 a.m., when PW Faizu Khan, grandfather of the PW Mohd. Zahrid, went to his field and found that it had not been watered (irrigated) and he asked the accused to assign cause as to why they had diverted the course of water towards their land on which both the accused/appellant beat him, where after Mohd. Zahrid along with his uncle Mohd. Kabir went on the spot to find out as to what had happened. On this, appellants animated with a common criminal intention, armed with axe and lathies attacked them at Kota, Tehsil Mendhar. The accused, Mohd. Ashraf committed murderous assault on Mohd. Zahrid and hit him on the right hand wrist, as a result whereof his bone got fractured because of the cut injury. The accused, Mohd. Ashraf committed a murderous assault on Mohd. Kabir and in this process the palm of his left hand got injured.
From the bare perusal of relevant extracts of statements of PWs Mohd. Zahrid, Mohd. Kabir and Faizu Khan, it is evident that they have proved the occurrence in clear terms that on 18.06.1994 at about 6.30 a.m., when PW Faizu Khan, grandfather of the PW Mohd. Zahrid, went to his field and found that field had not been watered (irrigated) and he asked the accused to assign cause as to why they had diverted the course of water towards their land on which both the accused/appellants beat him and when Mohd. Zahrid along with his uncle Mohd. Kabir came on spot accused/appellant Mohd. Ashraf inflicted a deep cut injury on the wrist of the right hand of PW Mohd. Zahrid and also caused injury on the right hand palm of PW Mohd. Kabir with an axe and the accused Mehtab Din beat them with lathies thereby voluntarily causing hurt with sharp edged weapon. These facts are further corroborated by PW Mohd. Shabir who has stated that PWs Mohd. Zahrid and Mohd. Kabir were beaten by the accused. The accused, Mehtab Din was having a lathi in his hand and beat them, whereas the accused Mohd. Ashraf inflicted injuries with an axe and the arm of Mohd. Zahrid was cut. Further PW Mohd. Taj though has been declared hostile, but has proved the fact that at 6-7 in morning on relevant day many people were assembled on spot; arm of PW Mohd. Zahrid was injured and palm of PW Kabir has received injury, he has admitted in cross examination that scuffle took place between accused and injured with regard to distribution of water. Similarly PW Safeer Ahmed though has been declared hostile, but has stated that he heard that scuffle took place; Similarly PW Mohd. Latief though has been declared hostile has proved fact of scuffle. PW Dr. Mumtaz Hussain Shah has proved the cause of injuries sustained by injured PW Mohd. Zahrid and Faizu Khan. Both injured have been examined on same day of occurrence by PW Doctor.
11. The argument of counsel for appellants that all the witnesses are related witnesses so their statements cannot be relied. This argument is not at all tenable. The fact that the witnesses are related to each other is no ground for disbelieving their evidence. Relative should have no interest to falsely implicate the accused or protect the real culprit. There is no general rule that the evidence of the relations of the victim, must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. In present case PWs Mohd. Zahrid, Mohd. Kabir and Faizu Khan are not only eye witnesses and related witnesses, but also are injured witnesses. A witness who himself becomes a victim to the crime is better capacitated to narrate the sequence of the crime scene. Minor discrepancies and omissions pointed out in their evidence did not shake their trustworthiness. Testimony of said witnesses did not deserve to be discarded on this sole ground of relationship. The injury to the witness is an in-built guarantee of his presence at the scene of the crime. The deposition of the injured witnesses should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The depositions so made cannot be brushed aside merely because there have been some trivial contradiction or omissions. Testimony of an injured witness can be acted upon even without any corroboration as he is having a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare actual assailant in order to falsely implicate someone. The evidence of the injured witness should be relied upon, unless there are grounds for rejection of his evidence on the basis of major contradiction and discrepancies therein. Accused/appellants have not been able to shake the credibility of the eye witness. No material contradiction in the case of the prosecution has been revealed.
12. Another argument of counsel for appellants that PWs Mohd. Taj, Safeer Ahmed and Mohd. Latief have been turned hostile so their statements have to be discarded as a whole. The Evidence of the hostile witness cannot be discarded as the relevant fact of the statement is admissible; corroborated part of evidence of hostile witness regarding the commission of offence is admissible. It has no justification to reject his evidence as a whole. The credibility of hostile witness can form the basis of conviction.
13. Another argument that, injuries on accused have not been explained, so no conviction can be based; he relied upon decision in case titled Lakshmi Singh v. State of Bihar, reported in MANU/SC/0136/1976 : 1976 AIR (SC) 2263, and High Court of Orissa in the case of State of Orissa vs. Sarat Chandra Puri. MANU/OR/0130/1989 : (1990) Cri.L.J. 814, wherein it is held that failure to explain injuries on accused, an adverse inference can be drawn that prosecution has suppressed true story, that due to injuries on accused, the case of prosecution becomes doubtful. I have gone through this aspect of matter; in present case, there is no substantial evidence that appellants have also sustained the injuries during incident. This was a fact, which accused were to prove before court below like other facts, which appellants have failed to prove. So this argument is devoid of merits.
14. Counsel has relied upon T.T. Antony and anothers vs. State of Kerala and Ors., reported in MANU/SC/0365/2001 : 2001 AIR (SC) 2637, but how this law is applicable I failed to understand, because this law is pertaining to the matter that for same incident only one FIR is maintainable against same accused.
15. Next argument of counsel for appellants is that I/O. in the case has not been examined; he has relied upon judgment of High court of Patna in the case of Hazari Choubey and others Vs. State of Bihar, MANU/BH/0264/1987 : 1988 Cri.L.J. 1390. Admittedly in the case I/O. has not been examined. Court below has relied upon MANU/SC/0783/2003 : AIR 2003 SC 4664 and MANU/SC/0405/2000 : AIR 2000 SC 1582, wherein it is held that non examination of I/O. in each case is not fatal unless prejudice is caused and when defense has failed to shake credibility of witnesses. While going through the facts of the case, I find that defense has failed to shake credibility of witnesses. So no prejudice has been caused. The court below has thus rightly applied the law.
16. In view of above discussion, I do not find any infirmity of law and facts in the judgment of court below. However, I find that appellants have been awarded 3 years imprisonment each under section 324 RPC, which is maximum under this section; but taking in view the fact that occurrence had taken place in the year 1994 and accused have faced trauma of trial upto 2004 before trial court for ten years and the present appeal is pending since 14 years, so these are mitigating circumstances for imposing lesser sentence of 1 year instead of three years under section 324 RPC. Imprisonment already undergone shall be set off. Sentence of fine is upheld. Appeal is disposed of accordingly. The bail bonds of appellants are forfeited; trial court is directed to cause arrest of appellants for undergoing rest of the imprisonment.
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