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CASE NO.: Appeal (crl.)  263 of 2004

PETITIONER: Hafiz                                                            

RESPONDENT: State of U.P.                                                    

DATE OF JUDGMENT: 04/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 1163 OF 2004

State of U.P.                                                   \005Appellant

Versus

Hafiz Rafiq                                                           \005Respondents Sharif  Lal Mohammed

S.B. SINHA,  J :

       These two appeals arising out of a common judgment and order dated  26.8.2003 passed by the High Court of Judicature at Allahabad in Crl. A.  No. 1795 of 1981 were taken up for hearing together and are being disposed  of by this common judgment. Criminal Appeal No. 263 of 2004 is by  Accused No. 1 and Criminal Appeal No. 1163 of 2004 is by the State.

       The incident occurred at about 7 P.M. on 28.10.1976 wherein Abdul  Rahman, deceased ,was said to have been killed by the accused persons, viz.,   Hafiz, Rafiq, Sharif and Lal Mohammed (the Appellant in Criminal Appeal  No. 263 of 2004 and Respondents 2 to 4 in Criminal Appeal No. 1163 of  2004).  Hafiz, Rafiq and Sharif are brothers.  Lal Mohammad is their cousin.   The deceased (Abdul Rahman) and his brother Suleman, PW-1 were  residents of village Khitauli.  Indisputably, the fields of the deceased and the  accused are adjacent to each other being divided by a water channel.  The  said water channel is connected with one Mohanpur Branch canal.  The  irrigation of the agricultural lands of both the parties used to be done through  the said canal.  Allegedly, 2-3 days prior to the occurrence, altercations had  taken place between the accused persons and the deceased as regard taking  of water from the said canal for irrigational purpose.  As the deceased  allegedly had taken water from the canal for making his field ploughable, the  accused persons objected thereto.  

       At about 7 P.M. on 28.10.1976, PW-1 accompanied by the deceased  went to their field allegedly for checking as to whether the same had become  ploughable.  The accused armed with lathies are stated to have come to the  field.  It is further stated that the accused had asked the deceased as to why  he had taken water from the canal as a result whereof the channel of the  canal was allegedly broken resulting in stoppage of  flowing of the water to  their field.  Stating they would not leave him alive, lathi blows were inflicted  on him.  PW-1 raised alarm whereupon Ghasi Khan PW-2 and Darab Khan,

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PW-3 came to the spot but when an attempt was made by them to save the  deceased they were threatened and chased away by the accused persons.   They ran towards the village leaving the deceased in the field.  A First  Information Report was lodged at about 9.05 P.M. on the same date.   Allegedly, the  body of the deceased was brought in a tractor by the accused  persons themselves accompanied by 16-17 persons whereupon they were  arrested.   

       Upon completion of the investigation pursuant to or in furtherance of  the said First Information Report, the accused stood their trial before the  learned Sessions Judge.  During trial the accused raised two divergent   defences :  (i) The deceased had cut the crop of bajra which was ripe from  their field and having been so found by them, he ran away towards his field  but was caught by Hafiz.  The deceased had a sickle with him and as he  intended to cause injuries upon Hafiz, he in exercise of his right of private  defence  hit him on his head with lathi; and (ii) When the deceased was  caught and brought to the police station, he sat on a stool and the Daroga  while interrogating kicked him as a result whereof he fell down and  complained of pain in his stomach.  A doctor was called and thereafter he  was taken in custody.   

The learned Sessions Judge in his judgment rejected both the defences  and found them guilty of commission of an offence under Section 302 read  with Section 34 of the Indian Penal Code and sentenced them to undergo  rigorous imprisonment for life.

       On appeal, the High Court, however, accepted the defence of right of  private defence raised by the accused opining that they have shown  preponderance of probabilities therefor in view of the statements made by  the prosecution witnesses in their cross-examination.  The second defence  raised by the accused, namely, the incident which took place in the police  station, i.e., a Daroga while interrogating kicked the deceased whereupon he  fell down and died was, however, disbelieved.   

According to the High Court,  Appellant Hafiz had, however,  exceeded his right of private defence.  It, therefore, acquitted the other three  (Rafiq, Sharif and Lal Mohammed) on the ground that they could not have  shared any common intention with him as he had merely exceeded his right  of private defence which is an individual act.  While holding the Appellant  Hafiz, guilty for commission of offence under Section 304, Part II of the  Indian Penal Code, the High Court sentenced him to undergo rigorous  imprisonment for a period of seven years.  The appeal preferred by Rafiq,  Sharif and Lal Mohammad was, thus,  accepted and they were acquitted on  being given the benefit of doubt.

       Both Hafiz and the State of U.P. are in appeal before us from the said  judgment.

       At the outset, we have to reject the second defence of the accused, that  is, Abdul Rahman, though given some lathi blows, was alive when he was  brought to the police station, and died of injuries sustained by him from a  kick on his back given by the Daroga and his consequent falling down on the  floor.  Satish Chandra (DW1), on whose evidence strong reliance is placed  to show that Abdul Rehman was brought alive to the police station, only  says that Abdul Rehman was slapped by the Daroga.  He does not say  anything about Abdul Rehman being kicked by the Daroga or his falling  down hitting his head on the floor.

       The learned counsel appearing on behalf of the accused would submit  that the prosecution has failed to prove any enmity between the parties and  in fact PW-1 and PW-3 had accepted that there had been none, with  regard  whereto, our attention has also been drawn to the following finding of the  learned Trial Judge:

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"\005but it has come in evidence that there exists no  enmity from before of his occurrence between  them and accused."

       It was urged that even motive for commission of the offence has not  been proved in regard whereto  our attention in this behalf has been drawn to  the following observations of the High Court :

"When Bajra, Arhar and Sugarcane crops were  existing in the fields of appellants 1 to 3, there was  no occasion for the above appellants to take water  from water channel to make it ploughable and  there was no other fields of the appellants near the  said water channel.  Moreover, in case Abdul  Rahman deceased had taken water from water  channel to make his field ploughable water  channel was not blocked and the appellants 1 to 3  were not affected by the above act of Abdul  Rahman deceased.  This being so there was no  occasion for appellants 1 to 3 to complain to Abdul  Rahman deceased that on account of taking water  by him (deceased) they could not take water to  their field to make it ploughable.  This shows that  the motive alleged by the prosecution is  improbable and it could give no occasion for the  appellants 1 to 3 to exchange altercation."

       The genesis of the occurrence, the learned counsel would contend, has  been suppressed inasmuch as in the First Information Report, it had not been  disclosed that the deceased was alive when he was brought to the police  station by the accused persons in a tractor.  Had the prosecution story been  correct, it was submitted,  the witnesses (particularly the brother of the  deceased) despite having been chased away would have come back with  others to the field to find out as to whether the deceased had succumbed to  his injuries or not.  Even without making any attempt to ascertain the  condition of his brother, PW-1 is said to have proceeded to the police station  although he could not have been sure about the death of his brother.

       Taking us through the deposition of the witnesses, the learned counsel  would submit that the prosecution witnesses contradicted themselves and,  thus, they should not have been relied upon. In any event, the accused Hafiz  was entitled to exercise his right of private defence.  

       Mr. Sahdev Singh, learned counsel appearing on behalf of the State of  U.P., on the other hand, would contend that from the tenor of cross- examination as also their statements under Section 313 of the Code of  Criminal Procedure, the accused persons have admitted the place of  occurrence and the time of occurrence.  It further stands admitted, it was  urged, that one lathi blow had been given on the deceased.

       Drawing our attention to the fact that the deceased suffered a number  of injuries, the learned counsel would submit that the internal injuries  received by the deceased could not have been caused by one single blow.   The accused persons, according to the learned counsel, had sufficient motive  to commit the crime having regard to the fact that there had been altercations  and exchange of hot-words relating to irrigation of their respective fields two  days prior to the date of incident.

       The High Court, it was submitted, has committed a serious mistake in  coming to the conclusion that the prosecution has not been able to establish  the motive.  It was urged that the prosecution has proved motive on the part  of the accused for assaulting Abdul Rahman (deceased).  The genesis of the  occurrence, the learned counsel would contend, has also been established. It  was further submitted that nothing has been brought on record to show that it

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was the deceased who had cut the  ear-corn of bajra.   

       Mr. Singh would argue that it is only PW-3 who alleged that sickle  was lying in the bajra field;  but  therefor only he was declared hostile, as no  such statement was made by him either in the examination-in-chief or in his  statement before the police under Section 161 of the Code of Criminal  Procedure.  Had any sickle been found when the accused persons brought  the body of the deceased to the police station for the purpose of lodging a  First Information Report against him,  they could have brought the same  with them and in any event, during investigation it could have been pointed  out to the Investigating Officer.  As it has not been established that the  deceased had cut ear-corn of bajra or was having a sickle in his possession,  the plea of exercising a right of private defence cannot be given any  credence.   

       We have been taken through the depositions of the witnesses brought  on record.  Indisputably there exist certain discrepancies in the statements of  the prosecution  witnesses but, in our opinion, from the broad feature of the  case to which we will advert to a little later, it would appear that the  prosecution has been successful in bringing home the charges leveled  against the accused.      

The learned counsel appearing on behalf of the Appellant-Hafiz did  not question the correctness or otherwise of the sketch map prepared by the  investigating officer.  The sketch map shows that the place of occurrence is  the irrigated field of the deceased measuring 14 bighas.  In the field of  Wazir, father of the Appellant-Hafiz, there were standing crops of bajra,  sugarcane and arhar.  The crops of bajra were grown on the north side of the  field abutting Mohanpur Branch canal.  A part of the said crops was found to  have been cut.  The place of occurrence, however,  is almost at the middle of  the field of the deceased and situate by the side of the water canal.  The  crops which were cut was towards the north of the field of Wazir.   According to PW-3, the sickle was found there.  If the defence case is to be  believed, the sickle should have been found  in the hands of the deceased or  near the place where the incident took place.  It is not in dispute that Hafiz  and other persons came to the police station purportedly for the purpose of  lodging the First Information Report against the deceased on the premise  that he had cut the bajra crops from their field. According to them, he was  alive then. It was, therefore, necessary for the defence to bring the said  sickle with them either for the purpose of showing that with it the crop of  bajra was being cut and/or it was  with the said weapon he intended to  assault Hafiz giving rise to exercise his right of private defence.  The  purported exercise of right of private defence cannot also be accepted in  view of the fact that even the First Information Report lodged by Hafiz has  not been brought on record.     The High Court, therefore, apart from not assigning sufficient and  cogent reasons did not consider the case from this aspect.  In view of the  evidence brought on record, the genesis of the occurrence appears to be as  disclosed by the prosecution.  No reason whatsoever was assigned by the  High Court as to why the statements of  the PWs in this behalf shall be  discarded.      

       The contention of the learned counsel that the fact that Abdul Rahman  (deceased) was either brought alive or otherwise, should have been disclosed  in the First Information Report, cannot be accepted, in view of the fact that  the First Information Report was lodged before the dead body was brought.   

       Furthermore, according to the accused only one blow of lathi was  inflicted on the head of the deceased.  The autopsy report, however, shows  that the following injuries were received by the deceased  :

"1. Contused wound 4 cm x 0.8 cm x bone deep  over front part of the head 9 cm above root of the

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nose with swelling all around. 2. Contused wound 2 cm x 0.5 cm x muscle deep  on the back surface of left forearm. 3. Abrasion 2 cm x 1 cm at back surface right  elbow. 4. Lacerated wound 1 cm x 0.2 cm x muscle deep  on the left front surface index finger left hand. 5. Contused swelling 10 cm x 8 cm on the left  chest lower part at the portion of axillary line. 6. Multiple abrasions of the various size on the  back of chest in an area of 18 cm x 12 cm. 7. Contusion 3 cm x 2 cm on the left side back  scapula region.

       Internal examination showed that skull was  congested under injury no. 1.  Frontal bone  crushed and depressed in an area of 1.5 cm x 1 cm  under injury no. 1.  Membrances were congested.   Brain was congested on both sides.  Walls were  congested.  5th, 10th and 11th ribs were fractured  under injury no. 5.  Peritoneum cavity contained  about one and half litre blood.  Stomach contained  semi digested food.  Small intestine contained  digested food.  Large intestine contained some  faecal matters.  Cause of death was coma and  haemorrhage as a result of ante mortem injuries."

       Both the Trial Judge as also the High Court have arrived at a finding  that the date, time and place of occurrence stood admitted.

From the foregoing discussions, it must be held that the prosecution  proved that the occurrence took place in the field of the deceased and not in  the bajra field of the Appellant.   

We are also unable  to accept the findings of the High Court that  having regard to the fact that the crops of bajra, arhar and sugarcane were  standing, the accused persons were not required to take water from the water  channel to make it ploughable.  It is the case of prosecution that the deceased  and Suleman, PW-1, had gone to their field for checking whether the land  has become ploughable and it is not the case of defence that they had gone to  their field to check whether their land has become ploughable.          The High  Court has failed to consider that even the standing crops of sugarcane and  arhar could require water for irrigational purpose.   It is not in dispute that  the land of the deceased was fallow and stood irrigated which also give  credence to the prosecution story.  Thus, we agree with the conclusion of the  learned Sessions Judge that the accused persons had the motive to pick up  quarrel with the deceased.  If this aspect of the prosecution story is believed,  the High Court must be held to have fallen into an error in coming to the  conclusion that the prosecution has suppressed the origin and genesis of the  occurrence.

       It may be noticed that the defence witness (Satish Chandra \026 DW1)  does not say about the standing crop.  He did not even say that he had been  told by the accused persons that the deceased had cut the standing bajra  crop.  Such a statement has been made only by PW-3 who was declared  hostile.   

If the statement of PW3 to the aforementioned effect is discarded, no  credence can be given to the plea of exercise of right of private defence set  up by the accused.  The said plea was raised, as noticed hereinbefore, in the  context that the deceased intended to hit the Appellant, Hafiz with the sickle  and then he exercised the right of private defence by hitting on his head with  a lathi.  

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The High Court in its judgment has proceeded on a hypothesis that  the deceased was cutting ear-corn of Bajra from the field of the Appellant  and when he objected thereto he tried to inflict a blow on him and he acted  in his self-defence.  We are unable to subscribe to the said view.    Hafiz, thus, must be held to have accepted that he had assaulted the  deceased on his head with a lathi.

The High Court also in its impugned judgment recorded:

"The contention of the appellants was that  appellant Hafiz caused lathi injuries on the  deceased though in exercise of right of private  defence and, therefore, it was only appellant Hafiz  who exceeded the right of private defence and his  act comes within the purview of culpable homicide  not amounting to murder punishable under Section  304 part-II I.P.C."

               A concurrent finding of fact has, therefore,  been arrived at by the  courts below that Hafiz caused lathi injuries on the deceased.  

               The findings of the High Court that the prosecution has not clarified  as to what was the size of moon in the night of occurrence must be held to be  irrelevant in view of the fact that the accused persons have not denied or  disputed the time and place of occurrence.  It also stands admitted that the  accused persons were involved in the occurrence.  

       It is now well-settled by various decisions of this Court that different  persons act differently in a given situation.  According to PW-1 and PW-3,  they were threatened and chased away after the deceased was assaulted.   They might not have, out of fear, ventured to go back to the field. They  came to know of the death of Abdul Rahman from others.  They got a report  prepared with the assistance of  one Anwar and left for police station.  It  may be correct that in aforementioned situation some other persons might  have gone to the place of occurrence, with  their relatives and other villagers,  but only because they did not do so,  would not by itself be a pointer to the  fact that their testimonies cannot be relied upon for any purpose whatsoever.  

       It may be true that the right of private defence need not specifically be  taken and in the event the court on the basis of the materials on records is in  a position to come to such a conclusion, despite some other plea had been  raised, that such a case had been made out, may act thereupon.  The High  Court, however, unfortunately proceeded to rely upon the defence version  only i.e. on the basis that the place of occurrence was the field of the  Appellant and sickle and the harvested bundles of ear-corn of bajra were  lying.   

       Mutually destructive defences taken by the accused persons would  also go a long way to disbelieve their story.  Both the Trial Judge and the  High Court has rejected the defence taken by the Appellant in his  examination under Section 313 of the Code of Criminal Procedure.

       We may notice that Mahesh Chand Dixit, PW-5 (Sub-Inspector of  Police) stated that the dead body of the deceased was brought on the tractor  of Nobat Ram Prasadi Lal.  He recorded the statements of Suleman, PW1 in  the police station and statement of Darab Khan at the same time.  The  deceased admittedly was assaulted with lathis by the Appellant.  The lathis  seized at the instance of Rafiq and Lal Mohammad were found to have been  fitted with iron cap at the one end.   

However, it must be recorded that even if we accept the statements of  the prosecution witnesses, it would appear that the occurrence might have

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occurred at the spur of the moment.

       We, thus, agree with the conclusion of the High Court that Abdul  Hafiz, Appellant in Criminal Appeal No.263 of 2004, is guilty of  commission of an offence  under Section 304 Part II IPC.   Admittedly,  Abdul Hafiz had caused a head injury and as such we do not intend to  interfere with the judgment of the High Court even as regard quantum of  sentence.  In that view of the matter, the appeal preferred by Hafiz being  Criminal Appeal No.263 of 2004 is dismissed.   

So far as Rafiq, Sharif and Lal Mohammad, Respondent Nos. 2 to 4 in  Criminal Appeal No.1163 of 2004 are concerned, there is no justification for  giving them the benefit of doubt as has been done by the High Court.  The  fact that they had also beaten the deceased with lathis is established not only  by the evidence of PW1 and PW2, but also by the evidence of PW3.  It  cannot, however, be said that they had any intention to cause death of  the  deceased Abdul Rahman.  They might have come armed with lathies with a  common intention of threatening the deceased and his brother and causing  injuries upon the deceased.  They are, therefore, found guilty for  commission of the offence under Section 326/34 IPC and sentenced to  three  years’ rigorous imprisonment. Criminal Appeal No.1163 of 2004 is allowed  to the aforementioned extent.

The Accused may be taken in custody to serve out their sentences.