IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 952 of 2001 (Old No. 1205/1994) Mukhtiyar & Ors. ..…. Appellants/Accused Versus State …………… Respondent December 9, 2009 Mr. K.S. Verma, Advocate i/b Mr. Sajjad Ahmad, Advocate for the appellants no. 1 & 2. Mr. M.S. Tyagi, Advocate for the appellant no. 5. Mr. K.S. Verma, Advocate for the appellant no. 6. Mr. Amit Bhatt, Addl. G.A. with M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 5.8.1994 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 555/1985, State of U.P. v. Mukhtiyar @ Gola S/o Jamaludin & Ors., whereby the learned Additional Sessions Judge has convicted the appellant no. 6 Mukhtiyar @ Gola S/o Jamaludin under Section 148, 307/149, 323/149, 324/149 & 506 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo one year’s R.I. u/s 148 IPC, five years’ R.I. u/s 307/149 IPC along with a fine of Rs. 1000/- and in default, to undergo additional six months’ imprisonment, six months’ R.I. u/s 323/149 IPC, one year’s R.I. u/s 324/149 IPC and one year’s R.I. u/s 506 IPC. All the sentences were directed to be run concurrently. Appellants/accused Mukhtiyar S/o Ibrahim, Israr, Yakub, Idrish and Akhter, each of them were convicted under Section 147, 307/149, 323/149, 324/149 & 506 IPC and each of them were sentenced to undergo one year’s R.I. u/s 147 IPC, five years’ R.I. u/s 307/149 IPC along with a fine of Rs. 1000/- each and in default, to undergo additional six months’ imprisonment, six months’ R.I. u/s 323/149 IPC, one year’s R.I. u/s 324/149 IPC and one year’s R.I. u/s 506 IPC. All the sentences were directed to be run concurrently. 2. Appellant no. 3 Yakub and appellant no. 4 Idrish died during the pendency of the appeal and hence, appeal of the appellants no. 3 & 4 was abated vide order dated 22.5.2009 passed by this Court. 3. In brief, the prosecution case is that PW2 Hakimullah lodged an FIR Ex. Ka-1 with PS Jwalapur on 14.10.1983 with the averments that accused appellants Mukhtiyar @ Gola S/o Jamaludin, Akhtar @ Kalwa and their companions were involved in illegal activities near the mosque. His son Irsad Ali (PW2) tried several times to make them understand not to do so and when they did not pay any heed to his request, he complained with the Railway Police Chowki on 12.10.1983 with the result that the accused appellants became angry with him. On 13.10.1083 at about 8.30 pm, his son Irsad Ali was returning to his home from Jwalapur on a scooter after finishing his routine work. When he was about to enter into the Mohalla, accused appellants came across to him on the main road and said that let us kill him, alleging him to be the kingpin of the complainants. On this, accused appellant Mukhtiyar @ Gola stabbed him in the stomach with a knife. Irsad Ali fell down in a pool of blood. On hearing the noise, when the complainant, his wife Sayedan (PW6) and younger son Nisar Ahmad (PW3) came for the rescue of Irshad Ali, then the accused appellants also assaulted them with the knife and lathis and they received many injuries in this incident. When people started gathering there, the accused appellants ran away from the place of occurrence holding out a threat that they would not leave Irshad Ali alive if he would not die this 2 time. This incident was witnessed by Iqbal Ahmad (PW5), Sayed Ahmad, etc. Injured Irshad Ali was taken to Harmilap Hospital, Haridwar, where he was given the first aid and thereafter advised to approach another hospital. After that he was admitted to BHEL Hospital, Ranipur, where he was operated upon, but still his life was not out of danger. Thereafter the complainant, his wife Sayedan and his younger son Nisar Ahmad, who were also injured, came to the police station and lodged the report of this incident with the aforesaid averments. 4. On the basis of the FIR Ex. Ka-1, chick FIR Ex. Ka-8 was prepared by Head Moharrir Jagroshan. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-9. Investigation of this case was entrusted to S.I. Shishupal Singh. Injured Irshad Ali (PW2) was medically examined by PW8 Dr. S.C. Singhal at Harmilap Hospital, Haridwar on 13.10.1983 at 10.15 pm, who prepared the medical examination report Ex. Ka-10. Thereafter the injured Irshad Ali was admitted to BHEL Hospital, Ranipur where he was medically examined by PW7 Dr. D.K. Tripathi, who prepared the medical examination report Ex. Ka-5. Injured Nisar Ahmad (PW3) was medically examined by PW4 Dr. G.K. Singhal at State Dispensary, Jwalapur on 14.10.1983 at 2.45 am, who prepared the medical examination report Ex. Ka-4. PW6 Sayedan was also medically examined by PW4 Dr. G.K. Singhal on the same day at 2.55 am, who also prepared the medical examination report Ex. Ka-3. During the course of investigation, the bloodstained clothes were taken into possession by the I.O. and fard Ex. Ka-2 was prepared. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-7. The I.O. recorded the statements of the witnesses during the course of investigation and after completing the 3 investigation, he filed the chargesheet Ex. Ka-6 against the accused appellants. 5. Learned Special Judicial Magistrate (Economic Offences), Haridwar after giving the necessary copies of the documents to the accused appellants as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 11.10.1985. Learned Sessions Judge transferred the case to Assistant Sessions Judge, Roorkee and subsequently to the Additional Sessions Judge, Roorkee for its disposal according to law. 6. On 10.2.1988, learned Assistant Sessions Judge, Roorkee framed the charges against the accused appellants Mukhtiyar @ Gola, Israr, Mukhtiyar S/o Ibrahim and Yakub & Indrish (appeal of whom being dead has been abated) u/s 147, 307/149, 323/149, 324/149 and 506 IPC. Accused appellant Mukhtiyar @ Gola was also charged u/s 148 IPC on the same day. The charges were read over and explained to each of the accused appellants, who pleaded not guilty and claimed to be tried. On 5.8.1994, learned Additional Sessions Judge, Roorkee framed the charges against the accused appellant Akhtar u/s 147, 307/149, 323/149, 324/149 and 506 IPC. The charges were read over and explained to him, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined PW1 Hakimullah, the complainant; PW2 Irshad Ali, the injured witness; PW3 Nisar Ahmad; PW4 Dr. G.K. Singhal; PW5 Iqbal; PW6 Sayedan; PW7 Dr. D.K. Tripathi; PW8 Dr. S.C. Singhal; PW9 Om Pal Singh, Record Keeper, S.P. Office, Saharanpur and PW10 Constable Iqbal Singh. 4 8. Thereafter, the statements of each of the accused appellants were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to each of the accused appellants in question form, who denied the allegations made against them. In defence, DW1 Akhtar was examined. In the documentary evidence, they produced the certified copy of the FIR lodged by the appellant Mukhtiyar @ Gola against the opposite parties. They also filed the certified copies of the medical examination reports of appellant Mukhtiyar @ Gola and his mother Sharifan. (Appeal of appellants no. 3 & 4 Yakub & Idrish respectively, being dead, has been abated). 9. After hearing learned counsel for the parties and after appreciating the evidence on record, learned Additonal Sessions Judge, Roorkee vide his judgment and order dated 5.8.1994 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 5.8.1994, the convicts appellants have preferred the present appeal. (Appeal of appellants no. 3 & 4 Yakub & Idrish respectively, being dead, has been abated). 10. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 11. Before any further discussion, it would be pertinent to reproduce the injuries found on the person of Irshad Ali (PW2) as mentioned in the medical report Ex. Ka-10, who was medically examined by PW8 Dr. S.C. Singhal on 13.10.1983 at 10.15 pm and the same are reproduced as under: “3 cm x 2 cm stab wound abdomen below umbilicus. Bowl loop is coming out of the wound. The 5 margins of the wound are sharp, there is fresh bleeding from the wound and the bowl coming out. Patient pulse 96/mt. Fully conscious, 130/80. Injury caused by sharp cutting object, fresh grievous since no Anesthetic is available, patient is being referred to Distt. Hospital, Saharanpur for management of case.” 12. To prove the abovementioned medical report Ex. Ka-10, prosecution has examined PW8 Dr. S.C. Singhal, who has proved the contents of the same. 13. PW2 Irshad Ali was further admitted to BHEL Hospital where he was operated upon by PW7 Dr. D.K. Tripathi, who prepared the injury report Ex. Ka-5 on 20.10.1983 and the same is reproduced as under: “There was ½” tear in the protruted loop of small gut another tear in small gut of ½” size app. 4” (Inches) away from previous one. There were two ½” size rents in bladder wall urine leaking in side Peritoneal cavity through bladder wounds.” 14. To prove the aforesaid injury report Ex. Ka-5, the prosecution has examined PW7 Dr. D.K. Tripathi, who has proved the contents of the same. In his cross-examination, he has stated that he was not aware that on which day he operated upon Irshad Ali and no date in this regard was mentioned in the injury report Ex. Ka-5. 15. PW3 Nisar Ahmad and PW6 Sayedan were also medically examined by PW4 Dr. G.K. Singhal at State Dispensary, Jwalapur on 14.10.1983 at 2.45 am and 2.55 am respectively, who prepared the medical examination reports Ex. Ka-4 & Ka-3 respectively and the injuries noted therein are reproduced as under: 6 Injuries noted on the person of Nisar Ahmad (PW3) as mentioned in Ex. Ka-4: “(1) Contusion 6 cm x 1.5 cm on the left shoulder (reddish). (2) Incised wound 3.5 cm x 0.2 cm x skin deep on the left upper arm on outer side (clot +). (3) Abrasion 0.2 cm x 0.2 cm on the left clavicle. Opinion : All the injuries are simple, fresh. Injury no. (2) is caused by sharp weapon. Injury no. 1 & 3 by blunt object & friction.” Injuries noted on the person of Sayedan (PW6) as mentioned in Ex. Ka-3: “(1) Contusion 8 cm x 4cm on front of left upper arm lower part (Reddish). (2) Abrasion 1 cm long on the front of right middle finger on the distal phalynx. c/o pain in back but no injury is present. Opinion : All the injuries are simple, fresh and caused by blunt object & friction.” 16. To prove the aforesaid medical examination reports Ex. Ka-3 and Ka-4, the prosecution has examined PW4 Dr. G.K. Singhal, who has proved the contents of the same. 17. To further prove its case, the prosecution has examined PW1 Hakimullah, the complainant, who in his deposition has reiterated the averments made in the FIR Ex. Ka-1. He has also identified bloodstained kurta Ex. 1, baniyan Ex. 2, trouser (payjama) Ex. 3 and underwear Ex. 4 of his injured son Irshad Ali (PW2), which were taken into possession by the police. This witness has also identified clothe which was used for sealing as Ex. 5. He has also identified the bloodstained Kurta of his son Nisar 7 Ahmad (PW3) as Ex. 6 and the clothe in which it was sealed as Ex. 7 and further stated that he had signed on the fard Ex. Ka-2. In his cross-examination, he has very categorically stated that he did not witness the said incident from his own eyes. He has further stated that Irshad (PW2) had narrated the incident to him at BHEL Hospital at 10 pm on the date of incident and at that time, his wife Sayedan (PW6), his son Nisar Ahmad (PW3), Sayed and Iqbal (PW5) were present there. He has also admitted in his cross-examination that a cross-case was going on against him, in which he, Irshad Ali, Nisar Ahmad, Mukhtiyar, Bahav, Iqbal (PW5) and Khursheed were the accused. He pleaded ignorance about the fact that as to whether Ibrahim, father of appellants no. 1 to 4, was a witness against him in the said cross-case. 18. PW2 Irshad Ali in his deposition has supported the contents made in the FIR. He has further stated that he had identified the accused in the light of the scooter and streetlight. He has identified his bloodstained Kurta Ex. I, baniyan Ex. II, trouser (payjama) Ex. III and underwear Ex. IV, which were taken into possession by the police. He has further stated that since he had complained against the accused appellants with the railway police chowki, therefore, they were inimical towards him. In his cross- examination, this witness has also admitted that in the same court, a case u/s 147/148/452/324/323 IPC against him was going on, in which his father Hakimullah, Nisar Ahmad and Mukhtiyar, his brothers; witness Iqbal (PW5) and Khurseed and Bahav were also the accused. 19. PW3 Nisar Ahmad, injured witness, PW5 Iqbal, an alleged eyewitness and PW6 Sayedan, also an injured 8 witness have corroborated the deposition of PW2 Irshad Ali. 20. PW9 Om Pal Singh, Record Keeper has stated that the chick of this case was weeded out on 12.9.1989 as per rules. 21. PW10 Constable Iqbal Singh has stated that he was well-acquainted with the handwriting and signature of Shishupal Singh, the I.O. of the case, who had prepared the case diary. He has proved the chargesheet Ex. Ka-6 and site plan Ex. Ka-7 and stated that the same were prepared by the I.O. Shishupal Singh. He has also proved the copy of chick Ex. Ka-8 and copy of GD Ex. Ka-9 and stated that the same were prepared by Head Constable Jagroshan. In his cross-examination, he has stated that he was never posted with Shishupal Singh, the I.O. of the case. He has further stated that he could not say as to whether the copy of chick Ex. Ka-8 was exactly according to its original or not. He has further stated that Ex. Ka-8 was not signed by Head Constable Jagroshan. He has also stated that he was posted in PS Jwalapur in the year 1987 and the instant case was of the year 1983 and the investigation of this case was done before his posting in the said police station. 22. Thereafter, the statements of each of the accused appellants were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to each of the accused appellants in question form, who denied the allegations made against them. In defence, DW1 Akhar was examined. In the documentary evidence, they produced the certified copy of the FIR lodged by the appellant Mukhtiyar @ Gola against the opposite parties. They also filed the certified copies of the medical examination reports of appellant Mukhtiyar @ Gola and 9 his mother Sharifan. (Appeal of appellants no. 3 & 4 Yakub & Idrish respectively, being dead, has been abated). 23. DW1 Akhtar (appellant no. 5) has stated that on the date of incident at about 8 pm, he was having his dinner in his house, when Irshad, Hakimullah, Nisar, Naseer, Mukhtiyar, Bahav, Iqbal and Khurseed intruded into his house. Irshad (PW2) was armed with a knife while rest of them were having lathis and sariyas. They started abusing him. His brother Mukhtiyar @ Gola had already arrived at the house by then. His brother Mukhtiyar @ Gola saved him when Irshad tried to assault him with the knife. Then Irshad assaulted his brother with the knife and caused injuries to him. When his mother Sharifan tried to save them, then these people also assaulted her. Mukhtiyar @ Gola was taken to Jwalapur Govt. Hospital by him, where he was treated and thereafter his brother Mukhtiyar @ Gola lodged the report of this incident with the PS Jwalapur on 13.10.1983 at 11 pm. He has further stated that in order to escape from the trail of this incident, the opposite parties have lodged a false FIR against him, his brother and sons of Ibrahim (appellants no. 1 to 4), who was a witness in his case. Certified copy of the said FIR is on the record, which was lodged by his brother appellant no. 6 Mukhtiyar @ Gola with the PS Jwalapur on 13.10.1983 at 11 pm, wherein the date and time of incident has been shown to be at 8 pm on 13.10.1983, on the basis of which, a case u/s 147, 148, 452, 324 & 323 IPC was registered against Hakimullah (PW1), Irshad Ali (PW2), Mukhtiyar S/o Hakimullah, Iqbal (PW5), Khurseed, Naseer and Bahav. He has further stated that his brother Mukhtiyar @ Gola (appellant no. 6) had received injuries in the said fracas, who was medically examined by the Medical Officer In-charge, State Dispensary, Jwalapur on 10 13.10.1983 at 10.30 pm. This witness was cross- examined at length, but he could not be shaken. 24. Following injuries were found on the person of Mukhtiyar @ Gola: “(1) Incised wound 1.5 cm x 0.5 cm x skin deep on the front of left thumb at its base (Blood clot). (2) Incised wound 2 cm x 0.5 cm x muscle deep on front of left index finger on middle phalynx (clot). (3) Incised wound 1.5 cm x 0.3 cm x muscle deep on the front of middle finger on middle phalynx (clot +)). (4) Abrasion 0.5 cm x 0.2 cm on the front of left ring finger on middle phalynx (Clot +) (5) Abrasion 0.5 cm x 0.3 cm on front of left little finger on the proximal phalynx (clot +). (6) Abrasion 1 cm x 0.1 cm on the front of left palm 1 cm above the little finger. (7) Abrasion 1 cm x 0.2 cm on the base of right forearm lower part (semi circle) 2.5 cm above the wrist on inner side blood (clot +). (8) Abrasion 0.5 x 0.5 cm on the back of right forearm lower part (semi circle) 1.5 cm above the injury no. 7 (blood clot +). (9) Abrasion 5 cm x 1.5 cm on the back of right side lower part. (10) Swelling 4 cm x 2 cm on the left cheek. Opinion : All the injuries are simple, fresh. Injury no. 1 to 6 are caused by sharp weapon. Injury no. 7-8 alleged to be caused by teeth bite. Injury no. 9-10 caused by blunt object.” 25. Learned Counsel for the accused appellants assailed the impugned judgment and order of the trial court by arguing that the genesis of the occurrence is shrouded in mystery and the prosecution has failed to explain the 11 injuries on the person of the appellant Mukhtiyar @ Gola and his mother Sharifan and, therefore, he argued that the conviction of the appellants suffers from infirmity and perversity. I find substance in the argument raised by learned Counsel for the accused appellants for the following reasons: (i) That there is no whisper by any of the witnesses about the injuries sustained by the appellant Mukhtiyar @ Gola, who sustained as many as 10 injuries, which creates reasonable doubt on the genesis of the occurrence and thus, on the whole prosecution story. (ii) That the appellant Mukhtiyar @ Gola was examined on 13.10.1983 at 10.30 pm i.e. prior to lodging the FIR of the incident in question which was lodged on 14.10.1983. (iii) That even the FIR of the alleged incident as stated by the appellants in their defence was lodged on 13.10.1983 at 11 pm and the said incident was said to have taken place at about 8 pm on that day. Thus, the FIR has also been lodged by the appellants prior to the FIR of the opposite party in which PW1 Hakimullah, the complainant, PW2 Irshad, PW3 Nisar, PW5 Iqbal, Naseer, Mukhtiyar S/o Hakimullah, Bahav and Khursheed were named as accused. (iv) That none of the prosecution witnesses uttered any word about the injuries sustained by the appellant Mukhtiyar @ Gola. But in the FIR lodged by the appellant Mukhtiyar @ Gola, he has narrated the entire incident as to how he sustained the injuries. (v) That PW6 Sayedan is the wife of PW1 Hakimullha and PW2 Irshad Ali and PW3 12 Nishar Ahmad are sons of Hakimullah and thus they belong to one family. (vi) PW5 Iqubal, an alleged eyewitness of the occurrence is an interested witness since he was named as an accused in the FIR lodged by the appellant Mukhtiyar @ Gola. The prosecution has not examined any other witness in support of its case. (vii) That PW1 Hakimullha, the complainant, in his cross-examination, has very categorically stated that he did not witness the alleged incident with his own eyes. He has further stated that Irshad Ali (PW2) had narrated the alleged incident to him at BHEL Hospital at 10 pm on the date of incident and at that time, his wife Sayedan (PW6), his son Nisar Ahmad (PW3), Sayed and Iqbal (PW5) were present there. He pleaded ignorance about the fact that as to whether Ibrahim, father of appellants no. 1 to 4, was a witness against him in the cross-case. (viii) That the S.I. Shishupal Singh, the I.O. of the case could not be examined by the prosecution and that statement of the PW10 Constable Iqubal Singh is shaky, who in his cross- examination has stated that he was never posted with Shishupal Singh, the I.O. of the case. He has further stated that he could not say as to whether the copy of chick Ex. Ka-8 was exactly according to its original or not and the same was not signed by Head Constable Jagroshan. He has also stated that the investigation of this case was done before his posting in the concerned police station. Thus, it appears that this witness has been examined by the prosecution just for the sake of it. 13 (ix) That the defence of the accused appellants corroborated by the evidence of DW1 Akhter appears to be more plausible than the rival version of the evidence of PW1, PW2, PW3, PW5 and PW6. Despite searching lengthy cross- examination, the prosecution has failed to elicit any material to shatter and discredit the testimony of DW1 Akhtar. 26. Undisputedly, it is a cross version of the incident. As has been recorded above, injuries sustained by the accused appellant Mukhtiyar @ Gola has not been explained by the prosecution. Even there is no whisper about it in the evidence. Mukhtiyar @ Gola suffered 10 injuries and all of them were fresh. In the opinion of the Medical Officer, injury no. 1 to 6 were caused by sharp weapon, injury no. 7-8 alleged to be caused by teeth bite and injury no. 9-10 caused by blunt object. The non- explanation of the injuries sustained by the accused appellant Mukhtiyar @ Gola is very fatal to the case of prosecution as it is a settled law that 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 certain inferences, viz., (i) that the prosecution has suppressed the genesis and the origin of the occurrence and thus has not presented the true version, (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable, (iii) that in case there is a defence version which explains the injuries on the person of