Case: Ahlaq alias Islaq & Others Vs. The State of Uttar Pradesh

1. The incident out of which this appeal arises is dated August 29, 1953. Seven persons were committed for trial on April 9, 1954. By an order of the Additional Sessions Judge dated June 9, 1956, the four appellants were convicted under various sections, S. 147, S. 304 Part I, IPC, read with S. 149, S. 323 read with S. 149 and each one of them was sentenced to 11/2 years under the first count, 10 years on the second and three months on the remaining three counts. All sentences were to run concurrently. They took an appeal to the High Court but it was dismissed on November 13, 1958. Against this judgment and order the appellants have come in appeal to this Court. The High Court did not grant a certificate under Art. 134 and therefore this appeal is by special leave.2. The case for the prosecution was that on August 29, 1953, at about 1-15 p. m. there was an altercation between Jumma and appellant Islaq near the Chakki of Momammed Ahmed, The houses of the appellants are close to the scene of occurrence and the house of Jumma also was about 40 paces from there. There was an altercation which resulted from a fight between the bullocks of Islaq and Jumma and two or three stick blows were given to Jumma by Islaq. Jumma went crying to his house and made a complaint to his sons who are four in number, i.e., Mushtaq, Altaf, Chhotey and Anwar. Two of them Mushtaq and Altaf went unarmed to Islaq to protest against the assault with a lathi and when Altaf intervened the ther accused persons who were sitting in a close by grove also came to the scene of occurrence. Of them Sakhawat was armed with a tabal and others had lathis. All the accused persons attacked Mushtaq and Altaf. Soon after Chhotey and Anwar, armed with lathis, arrived at the scene of occurrence and were followed by their mother Mst. Saidan. They used their lathis in defence of their brothers Mushtaq and Altaf but Sakhawat gave a tabal blow to Anwar, and Islaq laying aside his lathi took out his knife and attacked Mst. Saidan, when Chottey tried to save her he was also attacked with a knife and got injuries on his hand. Mushtaq who had also been attacked fell down on account of the injuries and died at the spot. This occurrence was witnessed amongst others by Chaman, Ashiq and Chau who were passing near the scene of occurrence and Bashir who is one of the neighbours also saw it from the roof of his house. On the intervention of these witnesses all the accused left the spot. One All Mohd, who was standing a few paces away with a lathi in his hand and is stated not to have taken part in the fight was, according to the prosecution case, not injured but his dead body was found quite close to the dead body of Mushtaq. Jumma is stated not to have been in the fight at all. The first information Report was made by Altaf and according to him when he returned from the police station he found that the dead body of Ali Mohd was also there. According to the prosecution there was no body near the dead body of Mushtaq. No explanation has been given by the prosecution as to how Ali Mohd was killed and how his dead body was found near that of Mushtaqs when the police arrived at the scene of occurrence. The prosecution has also stated that there was no previous enmity between the parties and that none of the sons of Jumma was armed with a knife but, as, stated above, Anwar and Chhotey were armed with lathis.3. The defence of the accused on the other hand was that when Jumma went home all his four sons along with Ashiq and Bashir, prosecution witnesses came to the place of occurrence. Of them Altaf was armed with a knife and rest had lathis. Altaf stabbed Ali Mohd on the neck with the knife. He fell down and died and thereupon the other three appellants used their lathis in self defence. They denied that Saidan was there or that she received any injuries. None of the accused persons made a report at the police station but when the police arrived at the place of occurrence a written report was handed over to them by Sakhawat.4. It may be mentioned that Mushtaq had 16 injuries all caused with a blunt weapon. The injuries were extensive and the skull was fractured with the brain matter coming out. Altaf, Jumma, Chhotey, Anwar and Saidan were found to have as many as 31 injuries but the injuries were all simple.5. Out of this occurrence two cases were started, in one of which the appellants and 3 others were the accused and in the other the party of the complainants was the accused. Both parties were convicted and appealed to the High Court but the appeal in which the complainants were the accused was heard by the High Court earlier and they were all acquitted. The appeal of the appellants was heard by a different Judge; their appeal was dismissed and the conviction was upheld.6. The Sessions Judge found that there was a free fight; that Mushtaq died in the course of the occurrence and Ali Mohd. also died in the course of the occurrence; and that Mushtaq and Altaf were not unarmed. He also found that neither party had given a correct version and had suppressed vital facts and had attempted to exaggerate the part of the rival party; that none of the persons belonging to the complainants party had received any knife injury and the story about injuries to Mst. Saidan had not been proved. The learned Sessions Judge also found that as a result of an exchange of abuse between Mushtaq and Islaq, men from both sides gathered and an unlawful assembly was formed by Ali Mohamed and the other accused persons "on the spur of the moment upon a sudden quarrel of which the common object was in the heat of passion to cause injuries to men of the other side." In other words there was a sudden quarrel which resulted in an unlawful assembly the common object of which was the infliction of injuries to persons on either side and therefore the causing of death of Mushtaq fell under Exception (4) of S. 300 and consequently the appellants were ,convicted under S. 304 Part I and other offences.7. The High Court held that (1) the prosecution witnesses had entered into a conspiracy to deny everything regarding Ali Mohds participation, his being injured or his death at the spot; and that the evidence of the prosecution witnesses was perjured, the reason being the counter case pending against them for the murder of Ali Mobamed. In spite of this finding the High Court relied upon that evidence and observed that the evidence of Chaman Ashiq, Bashir and Chau had not been discredited. With great respect to the opinion of the High Court it is difficult to accept its findings as to the testimony of the prosecution witnesses. They appeared as witnesses about three years after the occurrence. Whether it was because they were accused in a counter case or because their memory had got dim through lapse of time, their narration of events is unsatisfactory. The High Court itself has found their testimony to be perjured. We have been taken through the statements of the four witnesses, Chaman, Ashiq, Bashir and Chau. The evidence is almost identical, the sequence of events is the same and even the language used by each of the witnesses is almost the same. Ordinarily this Court does not interfere with conviction merely on a different assessment of the evidence but in the case before us on the findings of the High Court itself as to the quality of prosecution evidence the conviction cannot be sustained. And that conclusion is justified by a perusal of the evidence itself.8. There is one matter to which it is necessary to advert to because that is of importance for the guidance of the Courts below. Wherever, as in the present case, the parties are prosecuted for attack on each other in the same occurrence and there are counter cases with counter versions both trials should be held separately but, one after the other, by the same Judge who should not pronounce judgments till after both cases are heard and finished and the same would apply to appeals also. This practice was approved and emphasised by the Madras High Court in Krishna Pannadi v. Emperor AIR 1930 Mad. 190 and Lakshminarayana v. Swyanarayana AIR 1932 Mad. 502 and by the Lahore High Court in Ujagar Singh v. Emperor AIR 1936 Lah. 356 and by the Bombay High Court in Banappa Kallappa Ajwan v. Emperor AIR 1944 Bom. 146 . In a case which went to the Privy Council, Madat Khan v. The King Emperor ILR 8 Lah. 193 (PC) two parties were charged for an attack on each other in the same occurrence but the charges were tried separately at two different trials and both parties were convicted. The High Court on appeal, however, gave one judgment but tried the case as two cases and it was argued that they had imported considerations from one case into the other. Viscount Haldane delivering the judgment of the Board said:-"When one looks at it, to some extent that was inevitable and to some extent it did so happen. There was, however, a body of separata evidence which was applicable to each case arid that in itself was enough for the conviction; so that, although technically it might have been better to keep the evidence entirely distinct, and to have delivered two separate judgments no injustice has followed from what was done."9. In the circumstances of this case it would have been very much more satisfactory if the two appeals against the two orders of conviction of the two parties had been heard one after the other and by the same Judge though, as the Privy Council pointed out, two different judgments would be more satisfactory.10. The appellants had raised the question of self defence which, except that.it was merely mentioned in the judgment of the High Court, has not been discussed or adjudicated upon. It might have necessitated our sending the case back to the High Court for rehearing but after considering the findings of the High Court and the poor quality of the evidence which has been produced we are of the opinion that no useful purpose would be served because the prosecution has not been able to establish the case which they set out to prove.

Decision:
1[ds]6. The Sessions Judge found that there was a free fight; that Mushtaq died in the course of the occurrence and Ali Mohd. also died in the course of the occurrence; and that Mushtaq and Altaf were not unarmed. He also found that neither party had given a correct version and had suppressed vital facts and had attempted to exaggerate the part of the rival party; that none of the persons belonging to the complainants party had received any knife injury and the story about injuries to Mst. Saidan had not been proved. The learned Sessions Judge also found that as a result of an exchange of abuse between Mushtaq and Islaq, men from both sides gathered and an unlawful assembly was formed by Ali Mohamed and the other accused persons "on the spur of the moment upon a sudden quarrel of which the common object was in the heat of passion to cause injuries to men of the other side." In other words there was a sudden quarrel which resulted in an unlawful assembly the common object of which was the infliction of injuries to persons on either side and therefore the causing of death of Mushtaq fell under Exception (4) of S. 300 and consequently the appellants were ,convicted under S. 304 Part I and other offences.The High Court held that (1) the prosecution witnesses had entered into a conspiracy to deny everything regarding Ali Mohds participation, his being injured or his death at the spot; and that the evidence of the prosecution witnesses was perjured, the reason being the counter case pending against them for the murder of Ali Mobamed. In spite of this finding the High Court relied upon that evidence and observed that the evidence of Chaman Ashiq, Bashir and Chau had not been discredited. With great respect to the opinion of the High Court it is difficult to accept its findings as to the testimony of the prosecution witnesses. They appeared as witnesses about three years after the occurrence. Whether it was because they were accused in a counter case or because their memory had got dim through lapse of time, their narration of events is unsatisfactory. The High Court itself has found their testimony to be perjured. We have been taken through the statements of the four witnesses, Chaman, Ashiq, Bashir and Chau. The evidence is almost identical, the sequence of events is the same and even the language used by each of the witnesses is almost the same. Ordinarily this Court does not interfere with conviction merely on a different assessment of the evidence but in the case before us on the findings of the High Court itself as to the quality of prosecution evidence the conviction cannot be sustained. And that conclusion is justified by a perusal of the evidence itself.8. There is one matter to which it is necessary to advert to because that is of importance for the guidance of the Courts below. Wherever, as in the present case, the parties are prosecuted for attack on each other in the same occurrence and there are counter cases with counter versions both trials should be held separately but, one after the other, by the same Judge who should not pronounce judgments till after both cases are heard and finished and the same would apply to appeals also. This practice was approved and emphasised by the Madras High Court in Krishna Pannadi v. Emperor AIR 1930 Mad. 190   and Lakshminarayana v. Swyanarayana AIR 1932 Mad. 502   and by the Lahore High Court in Ujagar Singh v. Emperor AIR 1936 Lah. 356 and by the Bombay High Court in Banappa Kallappa Ajwan v. Emperor AIR 1944 Bom. 146  . In a case which went to the Privy Council, Madat Khan v. The King Emperor ILR 8 Lah. 193   (PC) two parties were charged for an attack on each other in the same occurrence but the charges were tried separately at two different trials and both parties were convicted. The High Court on appeal, however, gave one judgment but tried the case as two cases and it was argued that they had imported considerations from one case into the other.In the circumstances of this case it would have been very much more satisfactory if the two appeals against the two orders of conviction of the two parties had been heard one after the other and by the same Judge though, as the Privy Council pointed out, two different judgments would be more satisfactory.10. The appellants had raised the question of self defence which, except that.it was merely mentioned in the judgment of the High Court, has not been discussed or adjudicated upon. It might have necessitated our sending the case back to the High Court for rehearing but after considering the findings of the High Court and the poor quality of the evidence which has been produced we are of the opinion that no useful purpose would be served because the prosecution has not been able to establish the case which they set out to prove.