Abdul Hakim and Others vs State of U.P.

K. Narayan, J.—Five accused, namely, Shakoor, Abdul Ghaffoor, Abdul Hakim, Abdul Rahim and Jumma were put to trial for the offences under Sections 147, 148, 302 and 323 read with Section 149 IPC in S.T. No. 217 of 1978 of District Moradabad. By the judgment and order dated 23-1-79, accused Shakoor, Abdul Gaffoor were given benefit of doubt and were acquitted, while the pertaining persons, namely, Abdul Hakim, Abdul Rahim and Jumma were found guilty and convicted of the offence under Sections 147, 302/149 and 323/149 IPC and were sentenced to imprisonment for life u/s 302 IPC imprisonment for one year u/s 147 IPC and to imprisonment for three months u/s 323 read with Section 149/34 IPC by another order of the same date. Three accused have come up in appeal both against their conviction and sentence.

We have heard the learned Counsel for the Appellants and A.G.A. at length and gone through the record of the case along with them.

The prosecution contention, in brief, seems to be in the form that Rahman , the informant of the case, had passed possession of the land measuring 1.86 acres for Rs. 600/- only in the year 1974 for a period of three years in favour of Jumma, accused Appellant and his son Hanif, who was not an accused in the case. It appeared later on from the evidence that this transfer, if it could be so called, was in favour af Smt. Shakoonat wife of Hanif. The name of actual person is nor very material as that goes to the same family. This transfer is not disputed by the defence also. The prosecution case further has been that it was agreed that Jumma & Hanif would leave the land after three years, that is, in 1977. but they declined to leave the land in the month of Asarh, Upon their refusal to leave the land Habibul Rahman transferred the same by way of sale in favour of Sharif Ahmad, deceased in the case, for a consideration of Rs. 10500/-. Jumma on the other hand (may be Smt. Shakoonat) brought a suit before the Munsif in respect of the land.

For the occurrence, the contention of the prosecution has been that on 14-10-1977. Habibul Rahman, and Sharif Ahmad had gone to harvest Chari crop standing in the land in dispute and plough the same at about 4 in the morning and for that matter had also taken a tractor of Sardar with them. After ploughing the land, Habibul Rahman and Sharif Ahmad, Abdul Rahman and Majid went to enjoy smoking in the field of Chhotey. Sharif Ahmad was armed with his gun also. At about 7 A.M, Shakoor, Abdul Ghaffoor, Abdul Hakim, Abdul Rahim alias Pahalwan and Jumma arrived there and challengingly said that they would let Sharif has full possession that day. They caused injury with the help of Lathi and Tubal despite protest by Abdul Rahman resulting in spontaneous death of Sharif Ahmad and certain injuries to Habibul Rahman also.

Habibul Rahman was examined by PW 1 Dr. Subhash Tyagi on 14-10-1977 and simple injuries were found upon his person. The body of Sharif Ahmad was sent for post mortem examination which is said to have been conducted by Dr. S.P. Srivastava. Dr. Srivastava does not seem to have been examined by the court. The post mortem report which might have been prepared by him is Ex. Ka 20 subject to the observations that may be made in respect of this procedure, it may be mentioned that Sharif Ahmad had a number of contusions, lacerated wound and incised would upon his person as noted in the report of the post mortem examination.

The prosecution had examined 8 witnesses in all before the trial court. PW 1 Dr. Subhash Tyagi had conducted the medical examination PW 2 Habibul Rahman, PW 3 Mazeed, and PW 4 Abdul Rahman were examined as witnesses of fact of the occurrence. Out of these, PW 3 Mazeed did not support the prosecution version though he was put leading questions also. His evidence, therefore, does not lead us anywhere, PW 4 Abdul Rahman has also been disbelieved by the trial court because he had already given an affidavit somewhere else disowning the case of the prosecution. Of course the witness in the witness box had denied to have given any such affidavit but it will need more heavy reasons, which are absolutely wanting in this case, to think that the trial court was mistaken in disbelieving his testimony. Apart from the above situation, it may also be mentioned that even we are not prepared to accept his testimony as his conduct in the witness-box has not been satisfactory and reasonable. He too had tried to state that two more persons had come during the occurrence of assault and these persons, though he had not seen their faces, appear to be Shakoor and Abdul Ghaffoor. Since these two, according to him had arrived after his departure from the spot, they might have either come from the direction where he was going, in which case, he will have an opportunity to see their faces while crossing even from a distance or they would come from a different direction in which case their faces will be towards the place of occurrence and the witness himself. This situation itself indicates that this witness was not stating true facts and was trying to save or undo some part or implicate some body else.

The statement of PW 2 Habibul Rahman also suffered from the same discrepancy in the matter of Abdul Gaffoor and Abdul Hakim. He had stated that these two persons had kept their back towards him and he had not seen their faces. This situation is rather impossible when an assault takes place. Obviously he was trying to either conceal something or undo some wrong he had already committed in the form of mentioning them in the first information report. After the evidence of PW 3 Mazeed and PW 4 Abdul Rahman, we are left with the solitary evidence of PW 2 Habibul Rahman, whose interests in the matter are obvious from the FIR.

Before proceeding further with the detailed examination of the evidence of PW 2 Habibul Rahman, we may mention a little about the defence version also. The suggestion of defence to this witness has been that Chari was sown by Hanif and when Habibul Rahman and Shariff went there to take it away stealthily and also to take unlawful possession of the land, Hanif and other people of village went to the spot. They protested against the action and thereupon Sharif raised his gun, which was duly loaded and thereupon those persons in self defence injured the two, which might have resulted in the death of Sharif. The statement of accused is also to the effect that they were in possession of the land. Thus the facts as they have to be decided are in controversy in two ways. Firstly whether Habibul Rahriian or Sharif have been in possession of the land and owner of the Chari and secondly whether the accused persons, namely, Abdul Hakim, Abdul Rahim and Jumma were there at all.

To take up the first mentioned aspect before us we have to look the evidence of PW 2 Habibul Rahman himself. Though he has tried to say in the witness box that he had requested Jumma and Abdul Hakim to leave the land and they had given up their possession a few days before the expiry of Asarh. This seems to be only an after thought in the face of his own statement in the first information report itself, where he had very ''clearly stated that Abdul Gafoor and Abdul Hanif did not give up the land in Asarh and then he sold the land to Sharif Ahmad through a regis'' tered sale deed. The first information report itself also conveyed that Jumma (may be Smt. Shakoonat) had brought a suit in the court of Munsif. Would it any way commensurate with the idea that the possession was willingly left by the end of Asarh as tried to be suggested by PW 2 Habibul Rahman. The answer can be only in ''No''. His statement that he had won the case some 10 or 15 days before the occurrence is also a concoction as he had to admit later on that the suit was for specific performance of an agreement of sale and was still pending. He has also stated that the accused persons came to the spot at about 7 A.M. In the first instance, though at times it may be so genuinely also the fact that he had gone to cut the Chari and plough the land at 4 A.M. itself is indicative of concealing intentions. Apart from that, in any event, it would be quite a light at 7 A.M. in the month of October. The impression tried to be created that he could not see others namely, Abdul Shakoor and Abdul Gaffoor itself indicates that it was still earlier. In any case, his contention that he had been in possession and had sown Chari crop does not inspire confidence even for a moment and it is well shown he had not sown the Chari crop. His presence could be only for the purposes of taking unauthorized possession and help Sharif who happened to be his transferee. The possibility that a person who has been making so many amends in the prosecution version and left Hanif real person because that would weaken his case, cannot be denied. It is difficult to rely upon the solitary evidence of such a person in the matter of a murder, and it is more so because the other witnesses, who had been there, were also not supporting him. It is one thing that no other witness is available and in that case the solitary evidence of even an interested person may be worthy of credit but where there is evidence and those witnesses are not supporting the case of the prosecution, the evidence of interested persons, who can be safely said to be a person making fabrication, cannot be relied upon.

Before concluding and parting with the appeal we would like to refer to the admissibility of Ex. Ka-20 in evidence without examination of the medical officer concerned. It is true that at times the Code of Criminal Procedure permits admission of a document by the defence also and in that event proof according to law may be dispensed with, but for that matter, the papers itself should be a document. The word ''document'' has been defined in Section 3 of the Indian Evidence Act to mean any matter expressed or described upon any substance by means of any letter, figures or marks or by more than one of those means, intended to be used or which may be used for the purposes of recording that matter. It is evident from this definition that the purpose of preparation of the substance or any surface should be an intention to record that matter. A post mortem report is prepared by a Medical Officer as a memorandum of what he had seen at the time of examination of the corpse, of course, with a mind to work out certain evidence which may have occurred on the surface of the body or inside of the body, for which he often hues to open also. The report prepared by him is in the nature of a report prepared by a professional person and is put iu evidence u/s 159 of the Indian Evidence Act, which he as a matter of right may use to refresh his memory. It is by itself, therefore, not a document but a memorandum of the facts as seen by the medical officer concerned and it cannot be admitted. We are alive to the situation that there are certain cases where such papers have been allowed to be read even by this Court in evidence without the production of the medical officer concerned in the witness box. Those were exceptional circumstances where either the person had gone to England or otherwise become not available to the process of the court. There is nothing on the record of this case to indicate either. In the circumstances, failure to examine the medical officer who had conducted the post mortem examination has also resulted in a miss trial. We may also say that it was the duty of the court to watch the proceedings the proceed in a legal manner and any action or omission on the part of the defence or his counsel in that behalf would not come as a estoppel against him.

In result, the appeal is allowed, the conviction and sentences as -awarded by the court below are set aside and the Appellants stand acquitted. They are on bail and they need not surrender. Their bail and bonds are cancelled and sureties discharged.