Mehmud Hassan and ors. vs State of Haryana

S.D. Bajaj, J.

Kasam Jaan Sarpanch of Fardari was murdered. Eight persons are standing trial for his murder. Friends, relations and well wishers of the accused party are stated to have temporarily shifted from their native village Fardari to village Alawalpur of Police Station Nuh district Faridabad. Nazar Mohammad, author of the First Information Report, Faiz Mohammad and Gulzar are members of the rival accused party in the murder case of Sarpanch aforesaid who had shifted to village Alawalpur along with other members of their party.

Around 8.00 P. M. on 14th November, 1985 Nazar Mohammad, Faiz Mohammad and Gulzar got down from the bus at Bus Stand, Sikrawa, and were going on foot by the side, of the canal bank from Punhana to Alawalpur. On the way Gulzar got aside to make water while the remaining two continued their forward march. From behind they heard cries of Mar Dia. Mar Dia, returned to the place where Gulzar had got aside and saw that Shabir, Hamida, Rafiq, Shamsher and Mehmud Hassan, all the five accused armed with lathes had waylaid Gulzar. Mehmud Hassan accused proclaimed that Gulzar should be taught a lesson for the murder of Sarpanch and gave a lathi blow to Gulzar on the back side of the head of the deceased above the neck. Shabir accused gave Gulzar another lathi blow on the top of his head. Similarly Hamida, Shamsher and Rafiq also gave lathi blows to Gulzar on his head. On sustaining five lathi blows on his head from the five accused, as narrated above, Gulzar fell down on the ground with his face downwards. The five accused then gave lathi blows to Gulzar indiscriminately which fell on his waist, feet arms. The two eyewitnesses are then alleged to have raised alarm hereupon the accused fled away from the scene of occurrence. Injured Gulzar is alleged to have succumbed to his injuries on the spot and breathed his last.

On being charged with the commission of offences under Sections 148 and 302/149 of the Indian Penal Code, all the five accused pleaded not guilty and claimed to be tried. Learned trial court returned the verdict of guilty against all the five accused on 30th August, 1986. For their conviction under section 148, everyone of the five accused was awarded rigorous imprisonment for one year. For their, convictions. under sections 302/149 of the Indian Penal Code the accused were individually ordered to undergo imprisonment for life and to pay a fine of Rs. 200/. in default of payment of fine, the defaulting accused was ordered to undergo rigorous imprisonment for a further period of one month. The two substantive sentences of imprisonment awarded I to all the five accused were ordered to run concurrently. Against their conviction and sentence aforesaid all the five accused have come up in appeal.

We have heard Shri R.S. Cheema. Advocate, with Shri Qutabuddin, Advocate, for the appellants, Shri K.D. Singh, Advocate for the State and have carefully scrutinized the record of the learned trial court.

Out of the two eyewitnesses i.e. Faiz Mohammad and Nazar Mohammad only one named Nazar Mohammad has been examined as P.W. 4 and the other one was given up by the prosecution as won over. In the crossexamination of the solitary eyewitness the following admissions are note worthy which may have a bearing on the credibility of his deposition and authenticity of the prosecution case set up against the accused :

(a) I had gone to village Alawalpur from the spot after the occurrence.

(b) Faiz Mohammad had gone to village Utawad and brought Indu therefrom

(c) I narrated the occurrence to Lal Mohammad in village Alawalpur. I stayed in village Alawalpur for about half an hour at the house of Jalokhi with whom the daughter of my brother Lal Mohammad is married;

(d) When Gulzar was lying on the ground, his face touching the earth, he was given countless lathi blows by the five accused; and

(e) There is a party faction in our village 1, Faiz Mohammad and Gulzar are of one faction opposite to the accused.

Admittedly, existence of party faction in the village and of the solitary eyewitness in Nazar Mohammad PW 4 being a member of the rival group, opposite to the accused, casts an obligation on this court to scrutinize his deposition with care. It must be observed at the outset that the course of conduct adopted by the witness himself as also the one attributed to Faiz Mohammad another alleged eyewitness to the occurrence, is most unusual. It is simply incredible that the eyewitnesses to the occurrence would leave the dead body of Gulzar deceased unguarded at the place of occurrence and that shortly thereafter one of them would go to Alawalpur and permit the other one to go to village Utawad; more so when Gulzar have had a merciless and brutal attack at the hands of five lathi wielding enemies belonging to the opposite group in their very presence and the dead body was lying in the area controlled and dominated by the assailant group.

The lodging of the First Information Report at 7.15 A.M. on 15th November, 1985 in respect of the occurrence which happened around 8.00 P.M. on 14th November, 1985 the previous day, brings in an inordinate delay of 11 hours and 45 minutes therein. The special report reached the learned Illaqa Magistrate after about 14 hours. Instead of tendering any tangible explanation for it, the witness admits that he was roaming about in other villages and merrily talking about the occurrence to people whom he visited therein. The inordinate and unexplained delay in lodging the First Information Report casts a cloud of suspicion on the credibility of entire wrap and woof of the prosecution version.

Solitary eyewitness Nazar Mohammad P.W. 4 alleges the giving of 5 lathi blows one each by every one of the five accused on the head of the deceased and infliction of countless innumerable injuries by the five accused with their lathes on the waist, arms and feet of the deceased when Gulzar had fallen down on the ground upside down after sustaining the head injuries. The medical evidence, however, belies the ocular version completely. Out of 8 total injuries mentioned in the postmortem report Exhibit PA, only three are on the head of the deceased while the remaining five are on thigh, forearm and shoulder. The medical evidence has thus wholly negatived the ocular account of the occurrence.

There being admittedly enmity between the accused and the deceased it was the bounden duty of the prosecution to examine at least res gestae witnesses in Indu and Lal Mohammad to both of whom the alleged eyewitnesses to the occurrence had narrated the occurrence shortly after it had happened, Failure to examine even the res gestae witnesses for the purpose of obtaining corroboration of the eyewitness account of the occurrence, narrated by the solitary, inimical eyewitness Nazar Mohammad P.W. 4 throws a great deal of doubt on the prosecution case set up against the accused. All the five accused are, therefore, given the benefit of doubt and acquitted. They should be set at liberty forthwith. Fine (if realised) may be refunded to them.