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Madhya Pradesh High Court · body

2002 DIGILAW 40 (MP)

Zalil Khan v. State of M. P.

2002-01-09

R.B.DIXIT

body2002
JUDGMENT R.B. Dixit, J. 1. Feeling aggrieved by judgment and order of conviction dated 3rd November, 1998 passed in Sessions Trial No. 254/88 of Additional Judge to Sessions Judge, Vidisha at Sironj, thereby convicting the appellants under section 148, Indian Penal Code and sentencing them for one year R.I. and fine of Rs. 1,000 each and under section 307 read with section 149, Indian Penal Code for ten years R.I. and fine of Rs. 5,000/- each, the appellants have come up in appeal seeking redress praying for setting aside of the aforesaid conviction and sentence passed against them. 2. The facts giving rise to the prosecution of the appellants shorn of details lie in a narrow compass: On 23-1-1988, when complainant Nasir Miya along with Bhaiya Miya, Liak and Mohsin had gone to look after their crops on 'Karar-Wala' field, all the accused persons including accused deceased Mumtaj, who had died during trial, surrounded them armed with lathi, farsa and ballam and assaulted them with their respective weapons saying how they dare to come to the field. 3. Nasir Miya lodged First Information Report (Ex. P-8) and he was examined by Doctor Chandrahas Sharma (PW 12) who found two simple abrasions on his person. The same Doctor also examined Liak Mohd. (P.W. 10) who had sustained three incised wounds above mastoid process. His 6th and 7th ribs were found fractured in X-ray examination. Mohsin had suffered four injuries out of which fracture of right ulna and left elbow joint were found in X- ray examination. 4. It is not disputed that Gaji Miya (P.W. 3), Bhaiya Miya (PW 8), Nasir Miya (PW 7), Munne Khan (PW 5), Badshah Miya (PW 4), Liak Miya (PW 10) and Mohsin (PW 6) and others. Were also prosecuted under section 307, Indian Penal Code for causing injuries to appellants Pyare Miya, Dulare, Vaheed and Mumtaj. However, that prosecution turned into an acquittal. 5. The learned counsel for the appellants has contended that the prosecution witnesses deliberately changed the place of occurrence in order to avoid the plea of self defence raised on behalf of appellants. They have also failed to explain the injuries sustained by some of the accused persons and there are contradictions in the evidence of the prosecution going to the root of the case. They have also failed to explain the injuries sustained by some of the accused persons and there are contradictions in the evidence of the prosecution going to the root of the case. In such a situation, the learned trial Court erred in returning a finding of conviction and sentence against the appellants. However, the learned Government Advocate, on the other hand, has supported the findings of the trial Court. 6. I have heard the learned counsel for the parties at length and perused the evidence on record. 7. In First Information Report (Ex. P-8) and also in Police case diary statement of witnesses, it has been categorically mentioned that the dispute took place at a field known as 'Kararwala Kheth' It has also been mentioned in the First Information Report that the accused persons had challenged the complainant party by saying as to how they dared to come to cause harm to the crop of their field. However, during examination in the Court the prosecution witnesses had changed the venue of offence to another field known as 'Talab wala kheth' situated at a distance of one km. from the field mentioned in the First Information Report. The change in spot is deliberate in order to avoid the plea of self defence of property and person available to accused person. This is why all the witnesses have contradicted their police case diary statements insofar as the place of occurrence is concerned. 8. The prosecution witnesses have also denied the defence suggestion that accused persons had also received injuries in the same incident. However, it has been amply proved during trial from the record of the cross-case supported by the medical evidence of Dr. Chandrahas Sharma (PW 12) who had proved injury report of accused Pyare Miya as Ex.D-9, who suffered incised wound on left elbow, left eye brow and one incised wound on left parietal of the skull and swelling on left elbow and left eye. 9. Dulare Miya was also examined by the same Doctor and found to have received one incised wound in middle of skull. Vaheed Miya, according to his injury report, has received one incised wound on left eye brow and two other simple injuries on the left hand and right thumb. Another accused Mumtaj had received incised wound on his head and left forearm besides two other simple injuries. Vaheed Miya, according to his injury report, has received one incised wound on left eye brow and two other simple injuries on the left hand and right thumb. Another accused Mumtaj had received incised wound on his head and left forearm besides two other simple injuries. Accused Pyare Miya, in the X-ray examination, was found to have suffered fracture of his left humerus. It is clearly proved that the above injuries of the accused persons were sustained in the same incident. 10. According to the First Information Report and Police case diary statement of the prosecution witnesses, it is alleged that all the accused persons had jointly assaulted the aforesaid injured persons. However, in their examination before the Court, they had tried to attribute different injuries to different accused persons. Some of the injuries, as alleged, were also belied by the medical evidence of the injured witnesses. This is why all the witnesses have contradicted their police case diary statements even as regard to the manner of assault on them. The result is that the evidence of the prosecution witnesses is full of infirmities and contradictions. In such a situation, the defence of the accused persons that they had acted in self-defence is clearly borne out from the evidence of the prosecution witnesses themselves. 11. It has been observed by the Apex Court in case of State of U. P. vs. Bhagwan and others reported in 1977 SCC (Cri.) 1179, that where testimonies of eye witnesses found totally different from the story set out in the F.I.R. and their statements recorded under section 161, Code of Criminal Procedure such testimony is liable to be discarded, in case of Shiv Karan and another vs. State of Rajasthan reported in 1998 SCC (Cri.) 712 where accused persons sustained a number of injuries in the same incident and no explanation was offered by the prosecution particularly when the nature of the injuries showing that they were not superficial, the appellant were held entitled to the benefit of reasonable doubt. 12. In a recent decision of the Hon'ble Supreme Court in case of Takaji Hirji vs. Thakore Kubersing Chamansing and others. 12. In a recent decision of the Hon'ble Supreme Court in case of Takaji Hirji vs. Thakore Kubersing Chamansing and others. Reported in AIR 2001 SCW 2077 it has been pointed out that before non-explanation of the injuries on the persons by the prosecution witnesses may affect, the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) That the injury on the person of the accused was of a serious nature? and (ii) That such injuries must have been caused at the time of the occurrence in question. Now, in the present case, both the conditions are very well satisfied. In the circumstances, the accused persons are entitled to reasonable benefit of doubt on the basis of probability of the defence suggested to the prosecution witnesses and found well proved from the medical evidence. 13. In the result the offence is not found well proved beyond doubt against the accused persons and in the circumstances, the learned trial Court erred in convicting them as aforesaid. 14. Consequently, the appeal succeeds and is allowed. The conviction and the sentence of the appellants is hereby set aside. The bail bonds and surety of the appellants shall stand discharged. Fine amount, if paid be refunded.