IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1129 OF 2001 (Old No.2255 of 1992) The State ……… Appellant Versus Khan Mohd. S/o Imamuddin and others ……… Respondents Dated: November 17, 2008 Sri M.A. Khan, learned Brief Holder for the appellant/State. Sri R.P. Nautiyal, learned counsel for respondents No.1,2&5 HON. DHARAM VEER, J. This appeal preferred, under section 378 of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 13.07.1992 passed by II Addl. Sessions Judge, Dehradun, in Sessions Trial No.95 of 1991, State Vs. Khan Mohd. & others, whereby the learned IInd Addl. Sessions Judge has acquitted the accused-respondents namely Khan Mohd., Ali Hasan, Shaukat, Jaheed and Iqbal for the offence punishable under Section 147 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC), u/s 307 r/w Section 149 IPC, u/s 325 r/w Section 149 IPC and u/s 323 r/w Section 149 IPC. 2. I have heard Sri M.A. Khan, learned Brief Holder for the appellant/State and Sri R.P. Nautiyal, learned counsel for Respondent Nos.1,2 & 5 and perused the entire material available on record. 3. Appeal against the respondents No.3 and 4 namely Shaukat and Jahid stood abated vide this Court’s order dated 27.10.2007 as it was reported by CJM, Dehradun vide his report dated 31.5.2004 that 2 Respondent No.3-Shaukat and Respondent No.4-Jahid had been died. 4. In brief the prosecution case is that on 16.10.1990 at about 7:00 A.M., respondents No.1 to 4 namely Khan Mohd., Ali Hasan, Shaukat (now died) and Jahid (now died) had surrounded Mainuddin (P.W.2) at Bhuddi Chowk and caused injuries to him with cudgel (LATHIS) and iron-rods. When Noor Hasan and Nibabuddin tried to save P.W.2 Mainuddin, then the above-said assembled persons also caused injuries to them with cudgel and iron-rods. This incident was witnessed by Mir Hasan, Mehndi Hasan, Abdul Hamid, Shahzad and so many other persons. Then, the injured Mainuddin, Noor Hasan and Nibabuddin were taken to the hospital by the complainant-Ayub Khan (P.W.1) for the medical examination where Mainuddin and Noor Hasan were admitted in the hospital. It was also averted that Meer Hasan also received injuries by mediating between them. With these averments, P.W.1 Ayub Khan has reached to the police station along with the medical reports. He further averted that on the previous night, a quarrel also took place between them and respondent No.5-Iqbal and due to this enmity, these accused persons have caused injuries to the above-said injured persons. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Ayub Khan at Kotwali, Dehradun on 16.10.1990 at 10:50 A.M. On the basis of this FIR, the Chik FIR was prepared by H.M. Inder Singh and case was registered against the accused persons u/s 308/323 IPC, the Chik FIR is Ex.Ka-12. The necessary entry was also made in the G.D., the copy of G.D. is Ex.Ka-13. The investigation of this case was entrusted to S.I. Sompal Singh, P.W.5. The injured persons were examined by P.W.6 Dr. G.S. Rawat and the injury report of injured 3 Mainuddin (P.W.2) is Ex.Ka.14, injury report of injured Nababuddin (P.W.3) is Ex.Ka-15 and injury report of injured Noor Hasan is Ex.Ka-16. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-2. He also took in his possession the blood stained clay and the plain clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-3. The I.O. also took in his possession the blood stained clothes of the injured Munnu @ Mainuddin (P.W.2) and prepared a Fard, i.e. Ex.Ka-6. Ex.Ka-8 is the Fard prepared by the I.O. for taking the clothes of injured Noor Hassan. The I.O. also took the Patal in his possession which was used in the above-said crime and also prepared a Fard, i.e. Ex.Ka-9. Later on, during the investigation, the I.O. came to the conclusion that against the accused persons, offence under Sections 147/307/323/325 IPC is made out and the entry was also made in the G.D., and accordingly the offence was converted against the accused persons, the copy of the said G.D. is Ex.Ka-10. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, the Investigating Officer submitted that charge sheet against the respondents- accused under Sections 147/307/323/325 IPC, i.e. Ex.Ka.11. 5. Learned CJM, Dehradun appears to have committed the case to the court of Sessions on 15.7.1991 after giving necessary copies to the respondents-accused as required u/s 207 of Cr.P.C. 6. The case was transferred by Sessions Judge, Dehradun to II Addl. Sessions Judge, Dehradun for disposal according to law. 7. Learned II Addl. Sessions Judge framed charge against the accused-respondents Khan Mohd., Shaukat 4 Ali, Ali Hasan, Jahid and Iqbal on 29.7.1991 under Section 147 IPC, u/s 307 r/w Section 149 IPC, u/s 325 r/w Section 149 IPC and u/s 323 r/w Section 149 IPC. The charge was read over and explained to each of the accused persons, who pleaded not guilty and claimed to be tried. 8. The prosecution in order to prove its case got examined P.W.1. Ayub Khan, complainant of the case; P.W.2 Mainuddin, injured eyewitness; P.W.3 Nawabuddin, injured eyewitness; P.W.4 Mohd. Yasin, eyewitness; P.W.5 S.I. Sompal Singh, I.O. of the case and P.W.6 Dr. G.S. Rawat, who has medically examined the injured persons. 9. After that the statements of the accused- respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused- respondents in question from. Each of the accused- respondents denied the allegations made against him. In oral evidence, they have examined D.W.1 Dr. Gyanendra Singh Rawat. In documentary evidence, they have produced two injury reports as Ex.Kha-1 i.e. injury report of Iqbal (respondent-accused) and Ex.Kha-2 i.e. injury report of Shaukat (respondent-accused). 10. After hearing the counsel for the parties and appreciating the entire material available on record, the learned II Addl. Sessions Judge, Dehradun, vide his judgment and order dated 13.07.1992 acquitted the respondents-accused namely Khan Mohd., Ali Hasan, Shaukat, Jaheed and Iqbal for the offence punishable under Section 147 IPC, u/s 307 r/w Section 149 IPC, u/s 325 r/w Section 149 IPC and u/s 323 r/w Section 149 IPC. Against the aforesaid judgment and order dated 13.7.1992, the State has preferred the present appeal. 5 11. Before further discussion, it is pertinent to mention the injuries found on the body of injured Mainuddin (P.W.2) vide injury report Ex.Ka-14, who was medically examined on 16.10.1990 at 10:00 A.M., which are reproduced as under: - 1. L.W. T shaped (8.0 + 2.0 cm) x 0.5 cm. on the left side on top of head 9.0 cm. above the left mastoid process at 12 o’clock position, bleeding profusely, scalp deep 2. 3.5 cm. x 0.5 cm. size L.W. on the right frontal region 7.0 cm above the right eyebrow, bleeding present, scalp deep 3. Lacerated wound 2.0 cm x 1.5 cm x muscle deep on the right side forehead 0.5 cm. above the right eyebrow, bleeding present. 4. Abrasion 2.5 cm x 2.0 cm. bleeding on the left lower chest on the Lat. Aspect of chest 12.0 cm. Ant. inf. to inf. angle of left scapula. 5. Two parallel contusions at the distance of 0.5 cm. present on the Ant. Lat. Aspect of left lower chest 18.0 cm x 1.0 cm. size, red colour 14.6 cm ant. inf. to inf. angle Left scapula. On the same day at 10:10 A.M., injured Nababuddin (P.W.3) was also examined by P.W.6 Dr. G.S. Rawat and his injury report Ex.Ka-15 was also prepared, which reads as under: - 1. Abraided contusion 4.0 cm x 3.0 cm on the top of left shoulder, bleeding on touch. 2. Reddish contusion 12.0 cm. x 2.0 cm. on the post. aspect of left upper arm 7.0 cm above the olecranon process. 6 3. Reddish contusion 6.0 cm. x 2.0 cm. on the front lat. aspect of left upper arm 7.0 cm. above the olecranon process of left side. 4. Abraided contusion 2.0 cm. x 1.0 cm., bleeding on touch, on the front aspect of left forearm 4 cm. below the left olecranon process. 5. Abraided contusion 8.0 cm. x 3.5 cm. on left lower chest just infero-lateral to xiphisternum. 6. Contusion 2.0 cm x 1.5 cm on the dorsum of the meta-carpophalangeal joint of left hand in thumb. On the same day, injured Noor Hasan was also medically been examined by P.W.6 Dr. G.S. Rawat and his injury report Ex.Ka-16 was also prepared, which is also reproduced as under: - 1. L.W. 6.0 cm. x 0.5 cm. left frontal region of head 6.5 cm above the left eyebrow, bleeding present x scalp deep. 2. Abraided contusion 2.5 cm x 2.0 cm. on the front aspect of left forearm, bleeding from abrasion in touch, 10.0 cm. distal to olecranon process. 3. Abraided contusion 6.0 cm x 2.0 cm. on the front lateral aspect of right lower thigh, 15.0 cm. above the lateral end of sup-border of patella on right side. P.W.6 Dr. G.S. Rawat also stated that all the injuries of the above-said three injured persons could have been caused on 16.10.1990 at about 7:00 A.M. Apart from the above, the learned defence counsel also admitted the genuineness of the X-ray report of Mainuddin (Ex.Ka.17). 7 On the same day i.e. on 16.10.1990 at 12:30 P.M., respondents-accused Iqbal was also medically examined by D.W.1 Dr. G.S. Rawat and the following injuries were found on his body vide injury report (Ex.Kha-1): - 1. Stitched wound 1.5 cm. on the frontal region 5.0 cm. above the junction of both eyebrow 2. Stitched wound 2.0 cm. length on the top of head 14.5 cm. above the right mastoid process 3. Abraided contusion 15.0 cm. x 10.0 cm. on the left scapular region 2 cm. above the inf. angle of scapula (clotted blood present on the abrasion). 4. Abraided contusion 6.0 cm. x 1.5 cm. on the right supra spinious region of right back just above the lat. third of right scapular spine, bleeding on touch 5. Abraided contusion on the left side head 3.0 cm. x 3.0 cm. size 10.0 cm. above the left mastoid process at 12 o’clock position, bleeding on touch. 6. Abraided contusion 4.0 cm. x 1.5 cm. bleeding present on touch, present on the dorsum of M.C.P. joint of ring and little finger of right hand 7. Abraided contusion 5.0 cm. x 3.0 cm. on the front aspect of left knee over the popliteal fossa. On the same day i.e. on 16.10.1990 at 12:15 P.M., respondent-accused Shaukat was also medically examined by D.W.1 Dr.G.S. Rawat and following injuries were found on his body vide injury report Ex.Kha-2: - 8 1. L.W. on the top of head 15.0 cm. above the junction of both eye brow in midline 3.0 cm. x 0.5 cm. x scalp deep size, bleeding present 2. L.W. 2.5 cm. x 0.5 cm. x sub-cut tissue deep on the front aspect of head on left side 9.0 cm. from the left mastoid process 3. Multiple abrasion 1.5 cm. x 1.0 cm. to 0.5 cm. x 0.5 cm. in size on the outer surface of left pinna present, bleeding on touch 4. Abraided contusion 7.0 cm. x 2.5 cm. in size on the lat. aspect of upper thigh 16.0 cm. below the A.S.I. spine of right hip on the right thigh 5. Abraided contusion in the area of 8.0 cm. x 3.0 cm. on the ant. lat. of aspect of left leg 6.0 cm. below the end of patella. Contusion reddish colour. 12. To prove the aforesaid injury reports, the prosecution has examined P.W.6 Dr.G.S. Rawat, who has stated that on 16.10.1990, he was posted as Medical Officer, Emergency at Doon Hospital. He has proved the injury reports viz. Ex.Ka.14 of injured Mainuddin (P.W.2), Ex.Ka-15 of injured Nababuddin (P.W.3) and Ex.Ka-16 of injured Noor Hasan, which have been quoted above. 13. The respondents-accused also examined Dr. G.S. Rawat as D.W.1 in support of their case who was examined as P.W.6 by the prosecution witnesses. He also proved the injury reports of Iqbal as Ex.Kha-1 and Shaukat as Ex.Kha-2, which have also been quoted above. 14. To further prove its case, the prosecution has examined P.W.2 Mainuddin-injured, who has stated that on 15.10.1990, respondent-accused Iqbal came to his 9 house at about 9-10 P.M. and he misbehaved with his relative-Kudrat Ali. He asked respondent-accused Iqbal not to misbehave because his family was living there but respondent-accused Iqbal continued uttering abuses. Due to this reason, scuffle took place between both of them and at that time, wife of respondent-accused Iqbal was also with him. After that respondent-accused Iqbal went to his house. On the next day i.e. on 16.10.1990 at about 7:00 A.M. when he was carrying milk, Meer Hasan came to him and asked him for the compromise of the quarrel took place between him (Mainuddin) and respondent-accused Iqbal in the night and Meer Hasan asked him to come at Chowk for compromise. Then he went to the Chowk and sat near the Auto Repair shop of Bhagwati Prasad. In the meanwhile, respondents- accused Khan Mohd. and Shaukat being armed with cudgels (LATHIS), respondents-accused Ali Hasan and Jahid being armed with iron-rods and respondent- accused Iqbal being armed with a Patal, came on the place of occurrence and on the exhortation of respondent-accused Iqbal, all the respondents-accused caused injuries with their respective weapons to him. When Noor Hasan and Nababuddin (P.W.3) came to save him, then the respondents-accused also caused injuries to them. On the place of occurrence, Mehndi Hasan, Abdul Hameed, Abdul Majid, Shahzad, Ayub and so many other persons also came there and witnessed the incident and his wife also witnessed the incident. Thereafter, he was taken to the hospital and he sustained fracture on his head. His bloodstained clothes were taken by the I.O. (under shirt is Ex.1, Pant is Ex.2, Shirt is Ex.3 and cloth which was tied on his head is Ex.4). He also identified the Patal used by respondent-accused Iqbal as Ex.5. 10 15. The evidence of P.W.2 Mainuddin is in full corroboration with the evidence of P.W.1 Ayub Khan, who proved the FIR lodged by him, i.e. Ex.Ka-1, P.W.3 Nababuddin, injured witness and P.W.4 Mohd. Yasin, eyewitness of the case. 16. P.W.5 is S.I. Sompal Singh, I.O. of the case, who has stated that the investigation of the case was entrusted to him. During the course of investigation, he recorded the statements of witnesses, inspected the place of occurrence, prepared the necessary Fards and after completing the investigation, he filed the charge sheet against the respondents-accused, i.e. Ex.Ka-11. 17. After that the statements of the accused- respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused- respondents in question from. Each of the accused- respondents denied the allegations made against him. Respondent-accused Shaukat Ali has stated in reply to the last question that on 16.10.1990, Meer Hasan had called him. He reached on the spot and there he was beaten by Mainuddin, Nababuddin and Chotey by cudgels. When Iqbal came to save him, then he was also beaten by them and then a crowd assembled there. He also stated that in self-defence, he also used cudgels and stones. Then the ladies also reached there and they also saved them. 18. Respondent-accused Iqbal has stated in reply to last question that when he came out of the house along with Shaukat, then he saw that Mainuddin, Nababuddin and Chottey were beating Shaukat. When he went to the rescue of Shaukat, then Nababuddin (P.W.3) also beaten him with cudgel and then he fell down but even then they continued to beat him. When his wife 11 came to save him, then she fell on his body and she also received injuries. In self-defence, he also used cudgels. Then, number of people collected over there and there was stone pelting from both sides. 19. In oral evidence, the respondents-accused have examined D.W.1 Dr. Gyanendra Singh Rawat. In documentary evidence, they have produced two injury reports as Ex.Kha-1 i.e. injury report of Iqbal (respondent-accused) and Ex.Kha-2 i.e. injury report of Shaukat (respondent-accused), which have also been quoted above in para 11 of the judgment. 20. Sri R.P. Nautiyal, learned counsel for the respondents-accused submitted that as per the evidence discussed above, the incident has not happened in such a manner as has been described by the prosecution and the prosecution has failed to prove beyond reasonable doubt the charges leveled against the respondents/ accused. He further submitted that the injuries of the respondents/accused Iqbal and Shaukat were not explained by the prosecution and due to this reason, the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version. I find force in the argument advanced by learned counsel for the respondents. 21. From the evidence as discussed above, it has come that for the above-said incident, the respondents- accused also lodged the report and Shaukat also informed about the injuries to the I.O. This fact is also evident from the evidence of P.W.5 S.I. S.I. Sompal Singh, who has stated in his cross-examination that when he arrested the accused-Shaukat on 16.10.1990, then Shaukat told him that he also sustained injuries in this incident. It is well settled law that non-explanation of the 12 injuries sustained by the accused at the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the inference that “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have not explained the injuries on the person of accused are lying on the most material point and therefore their evidence is unreliable; and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case”. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witness or where the defence gives a version which competes in probability with that of the prosecution one. In the present case, on 16.10.1990, respondents-accused Shaukat and Iqbal were medically examined by D.W.1 Dr. G.S. Rawat (who was also produced by the prosecution as P.W.6) at 12:15 P.M. and 12:30 P.M. respectively, but the prosecution has not explained the injuries found on the person of respondents-accused Shaukat and Iqbal and even not a single word has been uttered by the prosecution witnesses about the injuries sustained by these respondents-accused. In the statement of the respondents-accused Shaukat and Iqbal recorded u/s 313 Cr.P.C., both of them stated that in self-defence, they also used cudgels (LATHIS), which also strengthen the fact of receiving injuries by these accused- respondents. Thus, from the above-said evidence, it is proved that the respondents/accused Iqbal and Shaukat sustained injuries in the above-said incident and their injury reports Ex.Kha-1 and Ex.Kha-2 respectively are 13 also proved by the Medical Officer D.W.1 Dr.G.S. Rawat, however, these injuries were not explained by the prosecution. Even in the statements of prosecution witnesses, not a single word has been uttered by the prosecution witnesses about the injuries of respondents/ accused which creates a reasonable doubt in the prosecution case. I am fortified in my view with the verdict of Hon’ble Apex Court in the case of “Babu Ram & others Vs. State of Punjab reported in (2008) 3 SCC 709”. Paras 18 and 19 of the said judgment are relevant to mention here, which are reproduced as under: - 18. It is a well settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the inferences: “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of injuries on the person of accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused 14 assumes much greater importance where the evidence consists of interested or inimical witness or where the defence gives a version which competes in probability with that of the prosecution one. 22. Thus, in view of the aforesaid judgment of Hon’ble Apex Court in case of Babu Ram (Supra), it is proved that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. Hence, by not explaining the injuries on the person of respondents/accused Iqbal and Shaukat, a reasonable doubt is thrown on the prosecution story. 23. Thus, from the evidence discussed above and also in view of the judgment of Hon’ble Supreme Court quoted above, the prosecution has failed to prove its case against the respondents/accused beyond reasonable doubt and I concur with the view taken by the trial court in acquitting the respondents/accused as discussed above. 24. For the reasons recorded above, the appeal preferred by the State is dismissed. The judgment and order dated 13.7.1992 passed by II Addl. Sessions Judge, Dehradun in S.T. No.95/1991, State Vs. Khan Mohd. & others, is hereby confirmed. (Dharam Veer, J.) November 17, 2008 Rajeev Dang