AFR Reserved [CASE NUMBER] [ENTITY] and Another Appellants Versus [ENTITY] Opposite party. CONNECTED WITH [CASE NUMBER] [ENTITY] Appellant Versus [ENTITY] Opposite party. CONNECTED WITH [CASE NUMBER] [ENTITY] Appellant Versus [ENTITY] Opposite party Hon'ble [ENTITY], J.
Challenged in these appeals by a quadruple appellants [ENTITY] (A1), [ENTITY]) [ENTITY], and [ENTITY]) are to the their convictions for offences U/[SECTION] [ACT] and 323/34 [ACT] and imposed sentences of ten years R.I. with fine of Rs.5,000/- on each of the appellants and in default of payment of fine to undergo 2 years further RI on the first count and one year R.I. on the second count recorded by Additional Sessions Judge, court no.2, Ghaziabad in [CASE NUMBER], [PRECEDENT] connected with [CASE NUMBER], State Vs. [ENTITY], both relating to PS Vijay Nagar, District Ghaziabad, vide impugned judgement and order dated 23.3.2006.Trial Judge has further directed that both the sentences shall run concurrently. It had further directed payment of Rs. Ten thousand as compensation to the injured [ENTITY] (PW3). Since in all these appeals impugned judgement is one and the same hence it all are being decided by this common judgement.
Briefly stated prosecution allegations were that informant [ENTITY] P.W.1 and all the appellants are co villagers being resident of village Mirzapur, P.S. Vijai Nagar, district Ghaziabad. A3 and A4 were eve teasers. [ENTITY] and [ENTITY] both sisters of PW1 and students of Sushila School were victims of that eve teasing. To save their honour PW1 had taken them to his working place at Delhi were they remained for six or seven months. During vacations all of them returned to their village to live with their parents. On 23.5.2000 when P.W.1, his brother [ENTITY] (PW3) were going to see off their father [ENTITY] (PW4) and younger sister [ENTITY] to railway station then A3 and A4 chased them on motor cycle and teasing they even dashed it with [ENTITY] side ways. After seeing off their father and sister PW1 and 3 came to the house of A2 to complain about misdemeanour conduct of A3 and A4 at 9 a.m. where they were threatened , abused and at the instigation of A1 rest of appellants A2, A3 and A4 started assaulting them who both sustained injuries. A3 caught hold of PW3 and A4 pierced knife in his chest causing extensive internal damage to his organs. After getting PW3 admitted in Ganesh Hospital that PW1 scribed a written report Ext. Ka-1 about the incident and then lodged it at PS Vijay Nagar,District Ghaziabad at 12.30 in the afternoon the same day.
HM [ENTITY] prepared Chik F.I.R. Ext. Ka-4 and G.D. Entry Ext. Ka-5. [ENTITY] P.W.6 commenced the investigation into the crime, prepared site plan Ext. Ka -6, interrogated witnesses and concluding it charge-sheeted all the accused on 12.7.2000 and 17.9.2000 vide Ext. Ka-7 and Ext. Ka- 8.
P.W.2 Dr. [ENTITY] of Ganesh Hospital medically examined injured PW3 [ENTITY] on 23.5.2000, who was brought to him by PW1 and had prepared his medical examination report Ext. Ka-2. Doctor had noted following internal and external injuries on his body:-
Stab injury 3 inches X 1.5 inches X chest cavity deep on lower portion of right side chest having a cut of 2inches through and through. Diaphragm between lung and abdomen was cut about 2 inches. Right side Liver was also cut 2inches x 1 cm. Right side muscles in between the ribs were also cut. Because of sustained injury blood had collected on right side chest and stomach. Patient was admitted in hospital between 23.5.2000 to 1.6.2000.
According to the doctor sustained injury could have been caused at or about date and time of the incident.
Dr. [ENTITY], P.W.5, M.O., M.M.G. Hospital, Ghaziabad medically examined PW1 at 1.40 p.m.same day, who was brought to him by Constable [ENTITY] of PS Vijay Nagar. Following injuries were noted by the doctor on his body:-
1. Lacerated wound 2 X 1 c.m. X muscle deep on right forehead in V-shape with oozing of blood.
2. contusion 4 c.m. X 2 c.m. on the right front of left shoulder.
3. contusion 3 c.m. X 2 c.m. on back of left forearm.
4. Abraded contusion 7 c.m. X 3 c.m. on back of right forearm.
5. Abrasion 1 c.m. X 1 c.m. on dorsal of right hand.
All the injuries were fresh, simple in nature and were caused by blunt object P.W.5 had proved medical examination report of PW1 as Ext. Ka-3.
Being charge sheeted all accused were summoned by the Magistrate who committed their case to Session's Court for trial on 15.3.2001 and 25.6.2001. Vth Additional Sessions Judge, Ghaziabad charged all the accused U/[SECTION] on 12.4.2002 and 1.2 2002. Since that charge was abjured by the accused trial proceeded to establish their guilt.
Prosecution examined six witnesses in all to bring home the charge, out of whom informant injured [ENTITY] P.W.1, injured [ENTITY] P.W.3 and their father [ENTITY] P.W.4 were fact witnesses. Dr. [ENTITY] P.W.2, Dr. [ENTITY], P.W.5 and investigating officer [ENTITY] P.W.6 were formal witnesses.
In their depositions all the fact witnesses supported prosecution version in it's entirety. PW1 testified that A3 and A4 used of tease his sisters on their way to school. Many a times protest was made but in vain.A3 and A4 had also threatened PW1 with his life. Deterred by their activities PW1 and 3 along with two sisters had shifted to Delhi where PW1 was employed six or seven months prior to the date of the incident. P.W.1 further stated that assault was made outside the house of the appellants when they had gone to lodge a protest about the morning incident when A3 and A4 had dashed their motorcycle with [ENTITY] while they were going to railway station. He had confirmed time, place, manner of assault and weapons used by the assailants. A1 and A2 had belaboured him while PW3 was assaulted in his chest by A4 when he was already encircled by A3 causing him life threatening injury.PW3 had fallen down sustaining that injury and therefore assailants had escaped from the spot.PW1 further testified that he had sustained lacerated wound on his head and after the incident he had transported PW3 firstly to the police station and then to Khatri Nursing Home, where his admission was declined and therefore was carried to Ganesh Hospital where he was admitted. Subsequent to his hospitalisation that PW 1 had scribed and had lodged his FIR and there after police had got him medically examined.
This witness had been subjected to searching cross- examination during which he had deposed that they had started for railway station at a distance of two and a half kilometres at 8.30 a.m. and A3 and A4 had chased them on their motor cycle from Samrat Chowk and it was near Devi temple that they had dashed it with his sister but they could not be apprehended because they speeded their motor cycle away. His father had to join his duty, therefore, along with his sister had left for Delhi. From station it took ten or fifteen minutes to them to reach place of incident on a rickshaw. This witness had emphatically denied defence suggestion that they had assaulted appellants inside their house in an incident of loot besides admitting that father of A2 had lodged a case against them.Pw1 further denied that A3 had whisked out and wielded knife after appellants were assaulted by kicks an fists by PWs1,3 and 4. He had also denied defence suggestion that he had gone to the house of appellants to assault them.
Another injured witness [ENTITY] P.W.3 fully supported P.W.1 in all important aspects of the incident. He was also tested thoroughly by the defence counsel wherein he had deposed that they had reached station at about 8.40 a.m. and they had reached place of incident at about 9 or 9.15 a.m. He further disclosed that he was carried to the police station on a scooter and from police station to Khatri Nursing Home on the same scooter but from Nursing home he was carried in an ambulance to the hospital. A3 had caught hold of him when A4 had pierced knife in his chest. He had refuted defence case that there was illicit relationship between [ENTITY] and A3 and A4 and therefore, they have falsely implicated the appellants. He further refuted defence suggestion that [ENTITY] had cupid relationship with A3 and A4 and she used to write letters and the two appellants had got photo of [ENTITY] as well.
Third witness of fact father [ENTITY] P.W.4, testified before the court that while he was going to the station along with his daughter [ENTITY] accompanied with PW 1 and 3 the two appellants A3 and A4 had dashed their motorcycle with [ENTITY] and thereafter he had left for Delhi accompanied with his daughter. He was informed about the incident in his bank office and thereafter he had returned to Ghaziabad from Delhi. During his cross-examination he had supported P.W.1 and 3 entirely and had further deposed that after the motorcycle was dashed he had not said anything to the appellants. He had further informed that earlier also there had been an altercation between his sons and the appellants. Information regarding the incident was conveyed to him between 10.30 and 11.00 a.m. by his Colleagues. While admitting pendency of a case against them in the court of ACJM, Ghaziabad, he had refuted defence suggestion of giving false evidence.
Formal witnesses in their depositions before the court narrated those very facts which are recorded herein above and hence are eschewed from being repeated.
In their statements under [SECTION] of the Code, appellants pleaded innocence and denial. A3 further stated that because of the political leaders he had been implicated falsely.A1 and A4 stated that PW1,3 and 4along with four or five of their associates had assaulted them with an intention to murder but their report was not taken down and therefore, with the help of an application under [SECTION] of the Code they got an F.I.R. registered against PWs as culprits. Accused did not examine any defence witness but filed certified copy of their FIR of [CASE NUMBER], injury reports of [ENTITY] and [ENTITY], copy of site plan and charge sheet against PWs 1,3 and 4 of cross case.
Trail court after critically appreciating facts of the case and evidences led before it concluded that prosecution has successfully established appellants guilt and therefore convicted and sentenced them as above hence these appeals challenging those convictions and sentences.
I have heard Sri [ENTITY] advocate on behalf of all the appellants and learned AGA in opposition.
Learned counsel for the appellants assailed impugned judgement by canvassing that the trial Judge wrongly relied upon prosecution evidences, no complaint was made regarding teasing because that was a false allegation. He canvassed that defence of the appellants is true narration of incident and in a brawl that ensued at the house of the appellants that injured sustained injuries. Place of incident is the house of the appellants and the prosecution has not explained the injuries sustained from the side of the appellants. Learned counsel further submitted that there was a cross version and therefore both the cases should have been tried simultaneously one after another by the same court, which procedure was not adopted by the trial Judge and therefore conviction of the appellants is indefensible. It was further argued that but for A4 prosecution case in respect of other accused is not established. All prosecution witnesses are related inimical partisan and no independent person came forward to support their allegations and hence conviction of the appellants is not sustainable. It was suggested that two accused had sustained injuries from the side of the appellants and prosecution has not offered any explanation for those injuries and therefore it's witnesses are either not reliable or they are suppressing genesis of the incident and in either case appellants deserves acquittal. At last it was submitted that all the appeals deserves to be allowed and conviction and sentences imposed on the appellants be set aside.
Learned AGA per contra refuted all the contentions harangued by learned counsel for the appellants and submitted that prosecution has established it's charge to the hilt beyond any shadow of doubt and therefore, appeals being meritless be dismissed. All prosecution witnesses are reliable and their depositions are unblemished,creditworthy and trustworthy and therefore can not be discarded. There was no enimous between them and the appellants to lay a false charge and therefore their depositions which is of an unimpeachable character must be accepted as correct narration of the incident. Albeit all prosecution witnesses were subjected to lengthy and tiring cross-examinations but the defence miserably failed to elicit any favourable circumstance to it which can discredit their testimonies. Mere relationship is no ground to reject testimonies of reliable witnesses. It is the quality of evidence that matters and not the relationship submitted learned AGA. Concludingly, it was submitted that all the appeals lacks merit and hence be dismissed.
I have considered rival contentions and have perused the trial court record in the light of raised contentions. Admittedly there are two cross versions regarding the same incident. Some of the facts in issue are common to both the versions. They are place and date of incident and presence of PW1,3 and 4 and A1,2,3 and 4 at the spot. PW 1 and 3 from the prosecution side and A1 and 4 from the defence side had sustained injuries in the incident. Weapon wielded by A4 has also not been disputed seriously. Albeit A3 pleaded alibi but to support his defence he had led no evidence. Alibi is subject to proof and in absence of any evidence supporting such a claim by A3 same can not be accepted. In such circumstances what is to be judged is as to which side was the aggressor and out of the two which version is more credible.
Judging from above angle I find that prosecution witnesses of fact are truthful cogent and clear in their depositions. They have supported prosecution version in all it's material aspects of the incident. They have not attempted to shield names of their sisters at the cost of their family prestige. Prosecution case is consistence from it's very beginning. It was because of eve teasing that incident had occurred. There was no reason for the prosecution witnesses to introduce a young damsel in the incident and that too their sisters and daughters. They all narrated that on the date of the incident A3 and A4 had dashed their motorcycle with [ENTITY]. This must have been immediate cause for PW 1 and 3 to come to house of A2 to lodge their protest. This is a vary natural conduct. None of the prosecution witness had any enimous against appellants to rope them falsely in a fabricated version at the cost of their family reputation to anoint temerity. Prior to present incident no FIR was lodged by them ostensibly to save faux pas and family prestige. No capital can be made out by the defence of this lapse on the part of the prosecution. There was no motive for the prosecution to built up a story of going to railway station as that would not have benefited them in any manner and hence their story of going to railway station is credible. More over there was no earthly reason for the prosecution witnesses to go to the appellant's house at that hour of morning but for the reason testified by them. Specific role of each of the appellant was disclosed during course of trial by those witnesses and no criticism could have been raised against them nor defence counsel could point out any damaging evidence in their depositions. Medical evidence of the two doctors also lend credence to the prosecution version being consistent with it. In this respect no criticism could be advanced by learned counsel for the appellants. Merely because PWs are related is no ground to reject their testimonies, which is otherwise confidence inspiring, is the trite law. In this respect some of the referable decisions are as follows:-
In [PRECEDENT] it has been laid down as follows:-
"11. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard."
In [PRECEDENT] apex court has held as under:-
"6. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In [ENTITY] and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under :-
"A witness is normally to be considered independent, unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in [PRECEDENT] in which [PRECEDENT] was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in [ENTITY]'s case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through [ENTITY], J., it was observed :
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - '[PRECEDENT]. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
10. Again in Masalti and Ors. v. [ENTITY] (AIR 1965 SC 202) this Court observed : (p. 209-210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
In [PRECEDENT] it has been held as under :-
" 8. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
9. In [ENTITY] and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
Thus, in view of above, contention of learned counsel for the appellants regarding related witnesses needs rejection and is hereby rejected.
To the contrary it is very surreal that defence had not led any oral evidence in support of it's case. It not even endeavoured to establish it on preponderance of probabilities. Appellants did file certified copies of some of the documents to support it's version but did not lead evidences to support them. A3 suggested to PW1 that he was assaulted but he never pleaded that suggestion in his statement U/[SECTION] of the Code. Appellants even did not attempted to get their trial in which prosecution side is an accused committed to the court of Session's to be tried along with their trial in which they are accused. It is therefore too late in the day for them to cry foul. They took the risk of arguing their case and therefore, now they cannot take a U turn to contend that they have been prejudiced. Further defence has not endeavoured to get its injuries and FIR exhibited. The accused persons have not got the original application proved. Further the injury sustained by A4 indicates that he had sustained a superficial injury. So far A1 is concerned he too had sustained superficial injuries. It is very clear that instead of filing these papers as is provided under General Rules (criminal), which is applicable to the lower court, the same has been filed without affixing any stamp on a plain paper. Perusal of defence FIR indicate that there is absolutely no mention about injury caused to Pw3 by knife. Thus defence version does not inspire any confidence at all not even on preponderance of probability. Defence version is also not acceptable because on the one had it canvassed exercise of right of private defence but on the other had it led no evidence to substantiate it. In this respect I rely upon following decision of the apex court. In [PRECEDENT] it has been held as under :-
"The accused was a Revenue Inspector and it is most difficult to believe that he would issue receipts for Rs. 946/- even though he actually received an amount of Rupees 810/-. In any case, the failure of the accused to mention this fact in his statement under [SECTION] [ACT] would go to show that the above plea is the result of an afterthought."
In [PRECEDENT] has been observed by the apex court as follows:-
"16. Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded."
In the instant appeal also appellants have failed to prove exercise of right of private defence. Firstly according to prosecution case PW 1 and 3 had gone to the house of appellants empty handed. No suggestion at all was given by the accused to either of the two witnesses PW 1and 3 that they had come there armed with blunt object and iron rod. It is also not suggested to them that they assaulted appellant's side after entering into their house. In absence of any such suggestion to any of the prosecution witness it is not possible to draw a presumption against Pws without affording them opportunity of explanation. In this context I rely upon the view of the apex court in Onkarnath Singh versus [ENTITY]: AIR 1974 SC 1550 wherein it has been held as follows:-
"34. The question is, what is the effect of this non-explanation of the injuries of [ENTITY]. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused (see [PRECEDENT] (supra), and [PRECEDENT] = (reported in [PRECEDENT]).
35. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot, be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."
In yet another decision State of Gujrat versus Bai [ENTITY]:
AIR 1975 SC 1478 it has been held as under :-
"16. Now we come to deal with the question of right of private defence. ' It is no doubt true that the prosecution did not explain the injuries on the person of respondent no, 1. P.W. 5 Dr. [ENTITY] who had examined the injuries on the side of the prosecution also examined [ENTITY], respondent no. 1 when she was sent to him by the police. [ENTITY] had lodged a complaint before the police which was found to be a non- cognizable offence at about 8.00 p.m. on 27-6-1968. That is Ext. 44. In this complaint she stated that her young one of the goat had gone in the Angana of [ENTITY]. The three persons named in the complaint were [ENTITY], [ENTITY], mother-in-law of [ENTITY] and [ENTITY], his wife. The two ladies caught hold of her Odhana and began to give her blows of kicks and fists. [ENTITY] gave stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the person of [ENTITY] were 5 in number, three contusions on the right forearm, one contusion on posterio- parietal part of right side of scalp and one contusion on scapular part of right side of back. The injuries were all of minor character. In her statement under [SECTION] of the [ACT] respondent no. 1 stated almost the same story and added that [ENTITY] was drunk while he was abusing her. Neither in Ext. 44 nor in the statement under [SECTION] there was a wisper by respondent no. 1 of her having squeezed the testicles and the private part of [ENTITY]. Nothing was stated to give any inkling of her having squeezed the testicles of [ENTITY] in exercise of her right of private defence to protect her from further assault. Nor was any evidence adduced in Court to give any counter version of the occurrence. No foundation was laid to enable the Court to acquit the respondents granting them a right of private defence. It did require a pure conjecture and imagination to hold the respondents not guilty by extending to them the right of private defence."
In view of above since no foundation was laid by the accused in support of their plea of right of private defence nor they examined any witness to support their claim I am not inclined to throw overboard prosecution case. Secondly, in their statement U/[SECTION] of the Code all the accused did not took the plea of exercise of right of private defence at all. What has been stated by two of the appellants was that they were assaulted by prosecution side but this suggestion remains unsubstantiated. Thirdly, PW4 claimed absence during incident whereas according to defence case he was present at the spot and had participated in assault. According to PW4 he was at Delhi at his working place but was made an accused in the cross FIR by the appellants. When he was in the witness box no question was put to him regarding his presence at the scene of the incident as was claimed by the defence. It was not even suggested to him that he was present at the spot during the incident. Fourthly, alibi of A3 was suggested to PW 1 and 4 but the same was not stated by A3 in his statement U/[SECTION] of the Code. Fifthly,PW5 had medically examined A1 and A4 as is revealed from defence papers but when the said witness was in the witness box appellants could not muster courage to get those medical reports duly proved. They intentionally eschewed it consciously because probably injuries suffered by them were self inflicted. Defence also did not file deposition of the doctor in cross version to negate prosecution case. Merely filing of injury reports without getting them proved is of no help to the accused. Sixthly no immediate motive had been suggested to the prosecution witnesses for them to come to the house of the appellant's at such an early hour of morning and therefore defence version can not be swallowed. Seventhly, oxymoron suggestions to all the witnesses does not inspire any confidence in defence theory. I don't mean to say that accused has to prove it's case beyond any shadow of doubt but what is fathomed out is that defence version of exercise of right of private defence is false and does not inspire any confidence. It is very queer that defence had not even suggested exercise of right of private defence to PW3.On the contrary suggestion to PW3 establish that A3 and A4 were eve teasers and a conclave was also convened for that purpose. This lend credence to motive part as was stated by prosecution witnesses.
Now,coming to another important aspect of the appeal as to what offence was committed by each appellant, I am of the opinion that so far as A4 is concerned his guilt under [SECTION] [ACT] is established to the hilt without any second thought. He had pierced knife with venomness in a most ghastly manner causing extensive internal damage to PW3. Force with which that injury had been caused and damage which PW3 had sustained because of that falls squarely within the ambit of offence U/[SECTION] [ACT]. He unerringly, intended to commit murder of PW3. In this respect it is also pointed out that trial Judge had charged A4 with the aid of [SECTION] [ACT], which obviously was a mistake. Trial Judge was not careful in framing charges. He even omitted to charge accused A1 to 3 U/[SECTION] [ACT]. However this fact should not distract me as no prejudice has been caused to the appellants during trial to defend themselves and meet out prosecution case which was consistent from it's inception. Specific roles of appellants was spelt out by the PWs. Other wise also defect in charge by itself is not sufficient to obliterate conviction as is provided under [SECTION] of the code. Probably it is because of this reason that not much argument was canvassed by learned counsel for the appellants in this respect. A3 had caught hold of PW3 when he was assaulted with knife by A4 and hence his conviction U/[SECTION] [ACT] can also not be assailed.
Coming now to the offences committed by A1 and A2,it is difficult to cogitate that they shared the same common intention as that of A3 and 4. They have caused only simple injuries to PW 1. None of them had assaulted PW3. Injuries of PW 1 does not indicate that he was belaboured with intention to commit murder. Incident was preceded with a tiradic altercation. In such a view it is very difficult to conclude that A1 and 2 shared same common intention with A3 and A4 and intended to commit murder. Resultantly I am of the opinion that though A1 and 2 did participate in the assault and caused injuries to PW1 but there was no commonality of purpose between them and A3 and 4 and hence their conviction U/[SECTION] [ACT] is unsustainable. But,since they had assaulted PW1, their conviction under [SECTION] [ACT] does not call for any interference. Further since A3 and 4 had not assaulted PW1 their conviction U/[SECTION] [ACT] and sentence thereunder is also indefensible and is liable to be set aside. I am also of the opinion that imposed sentence of one year R.I. on A1 and 2 is too excessive.
Concluding this judgement, [CASE NUMBER], Saleem@ [PRECEDENT] is allowed in part. Conviction of appellant Saleem(A4) U/[SECTION] [ACT] is hereby set aside and he is acquitted of that charge. His convictionU/[SECTION] [ACT] is altered to one U/[SECTION] [ACT] and for that offence he is sentenced to the same sentence of 10 years RI with fine of Rs.5000/= and in default of payment of fine to under go 2 years further RI.
Criminal appeal No. 2148 of 2006 [ENTITY] Versus State is allowed in part. Conviction of appellant [ENTITY] U/[SECTION] is set aside but his conviction and sentence U/[SECTION] [ACT] is hereby maintained and his appeal is dismissed on that score.
[CASE NUMBER] Mulla@ Kalu@ [PRECEDENT], is allowed in part. While conviction of appellants Mulla@ Kalu@ Tahir(A1) and [ENTITY]) U/[SECTION] [ACT] are maintained but their sentence for that offence is reduced to the period already under gone by them. However their conviction under U/[SECTION] [ACT] and sentence thereunder is hereby set aside and they are acquitted of that charge.
Since two of the appellants [ENTITY] and [ENTITY] have already served out their sentence they are directed to be released from jail forthwith unless they are incarcerated there in connection with some other offence.
Compensation of Rs. Ten thousand as was ordered by the trial court to be given to PW 3 is also not interfered with.
The above appeals are allowed in part as above. Copy of this judgement is directed to be transmitted to the trial court for it's intimation.
Dt.6.8.2010 Rk/