Mushtaq and Another vs State

A.N. Dikshita, J.—This appeal has been filed by Mushtaq and Pratap against the judgment and order dated 22-3-1979 passed by Sri J.P. Sharma, 4th Additional Sessions Judge. Banda. By the impugned order Mushtaq has been convicted u/s 323 and Section 323/34 Indian Penal Code and sentenced to one year''s RI and a fine of Rs. 1000]- and in default of payment of fine six months'' further rigorous imprisonment while Pratap has been convicted u/s 323/34 Indian Penal Code and sentenced to six months'' RI and a fine of Rs. 500/- and in default of payment of fine four months'' further rigorous imprisonment.

The prosecution case, in brief, is as follows: Mushtaq Appellant is a neighbour of the complainant Ali Hasan and is also nephew. Both of them haw their houses in village Saya, P.S. Bisenda district Banda. On 11-5-1976 at about 6.00 p.m. when Ali Hasan returned to his house after doing his work in fields he saw that his daughter Rukhsana aged about 5 years and Suleman aged about 6 years were quarrelling amongst themselves. Both the children were separated and reprimanded by Ali Hasan. After sometime Mushtaq Appellant brother of Suleman alongwith the other Appellant Pratap came armed with lathis and started hurling abuses to Ali Hasan. When Ali Hasan tried to stop them from abusing him, Ali Hasan was assaulted with lathi, fists and slaps. On an alarm being raised by Ali Hasan his wife Khaliqun rushed to his rescue but she too was beaten by fists, legs and lathi. On the alarm of both the victims Anisa, their daughter, and Rais and Jagdish Prasad of the village also came. On their intervention the matter was pacified and the Appellants went towards the village. Smt. Khaliqun, wife of Ali Hasan, had received some internal injuries on some vital parts of her body. She became unconscious after receiving the injuries and died after half an hour of the incident.

A report of the incident is said to have been dictated by Ali Hasan to one Badri Prasad and it was lodged at 9.30 p.m. at P.S. Bisenda, the police station being seven miles from the place of incident. On the basis of the written report a case under Sections 304/323/504 Indian Penal Code was registered against the accused Appellants.

The investigation of the case was taken up by Abdul Halim, S.I. The inquest report of the dead body of Smt. Khaliqun could not be prepared at night and it was prepared the next day at 6.00 a.m. Ultimately a charge-sheet was submitted against the Appellant under Sections 302/34 and 323/34 Indian Penal Code.

Dr. T. R Singh conducted the post mortem examination on the dead body of Smt. Khaliqun. He found the body in an advanced stage of decomposition. The body and face were bloated. The Doctor noted the following ante mortem injuries on the dead body:

Abraded contusion 6 cm x 1 1/2 cm over back of right forearm in the lower third.

Contusion 12 cm x 8 cm over right iliac fossa.

On internal examination the doctor found the lungs congested. In the abdomen ecchymosis was present in an area of 15 cm x 12 cm in the right iliac fossa and lower part of abdomen right side. In the peritoneum ecchymosis and baematoma was present on the left side around spleen and left kidney and the abdomen cavity contained about 1 1/2 litres dark colour thick blood. The spleen was congested all over and there were two lacerations of different sizes. In the opinion of Dr. Singh the death was caused due to shock and haemorrhage produced by the rupture of the spleen.

The injuries of Ali Hasan were examined by Dr. Bhatnagar on 11-5-1976 at 9.30 p.m. One abrasion and two bruises were found on his person. All the injuries were found fresh, simple and caused by some hard blunt object.

In support of its case the prosecution examined complainant Ali Hasan, PW 1, Km. Anisa, PW 2, Km. Rukhsana, PW 3, Badri Prasad, PW 4, and Abdul Halim, S.I., PW 5.

Both the Appellants denied the incident'' and stated that they had been falsely implicated in the case.

The trial court after considering the evidence on record found the Appellants guilty of the offences as already mentioned above and accordingly convicted and sentenced them.

I have heard the learned Counsel for the Appellants and the learned Assistant Government Advocate appearing on behalf of the State. At the outset I might mention that I do not find it to be a fit case for maintaining the conviction of the Appellants.

Before coming to the oral evidence I might mention some very glaring defects in the case. The prosecution did not care to examine the doctor who conducted the post mortem examination on the dead body of Smt. Khaliqun. This has materially affected the prosecution as well as defence case. Whether the death resulted from the injury inflicted in the abdomen of the deceased or it could also be the result of hanging, strangulation etc. as the doctor found intestine and faecal matter coming out of the anus, eyes bulging and tounge between the teeth, could not be ascertained. A look at the report of internal examination of the deceased shows that some very relevant questions arose which needed answer from the doctor. In this case though the independent witnesses were available they have not been examined to prove the incident. The witnesses of incident are only the complainant himself and two of his daughters, one of whom was discharged being a child and not capable of understanding the sanctity of death and not being in a position to point out the place of incident. Non-production of independent witnesses also creates a doubt about the veracity of the prosecution version about the incident.

In his deposition in court Ali Hasan, PW 1, gave out the prosecution version as already stated above and asserted that Mushtaq gave a leg blow in the abdomen of his wife Smt. Khaliqun ; that both the Appellants Mushtaq and Pratap had beaten the witness and Smt. Khaliqun ; that he was beaten with lathi while his wife Smt. Khaliqun was given legs and fists blows; that immediately thereafter Rais and Jagdish Prasad arrived ; that his daughter Anisa also arrived at the scene of incident ; that no blood oozed out of the injuries sustained by him or his wife Smt. Khaliqun and that he dictated the first information report of the incident to Badri Prasad, PW 4. In his cross-examination Ali Hasan, PW 1, stated that in his report he had dictated to Badri Prasad that Mushtaq accused had given a leg blow in the abdomen of his wife while Pratap Appellant was besieging him but he did not know how this was omitted. It might be mentioned that the first information report nowhere states that the fatal blow in the abdomen of Khaliqun was given by Mushtaq. Rather in his examination-in-chief this witness had stated that she was beaten by both the Appellants. The scribe of the report Badri Prasad, PW 4, has categorically stated that whatever was dictated to him by Ali Hasan was written by him. In his statement recorded u/s 161 Code of Criminal Procedure also Ali Hasan did not tell the investigating officer that. Mushtaq accused had given a leg blow in the abdomen of his wife Smt. Khaliqun though in his deposition be stated that he had stated this fact to the investigating officer. The most significant admission made by Ali Hasan, PW 1, in his deposition in court was that the report of the incident was dictated by the Sub-Inspector to Badri Prasad, PW 4, and then he had put his thumb impression on it. The statement of this witness does not seem to be inspiring confidence. There is no role assigned in the first information report to each accused and in his deposition Ali Hasan admitted that both the accused had beaten him and his wife. He falsely stated that he had dictated the report to Badri Prasad, PW 4. The statement of this witness does not clearly show that the fatal leg blow in the abdomen of Smt. Khaliqun was given by Mushtaq alone. His statement which has falsity and contradictions cannot be relied upon for recording conviction and deserves to be discarded.

Anisa, PW 2, is the daughter of Ali Hasan, PW 1, and the deceased. In her statement she also gave out the prosecution version as given out by -Ali Hasan but she admitted that Smt. Khaliqun was beaten by both the Appellants. In cross-examination she also admitted that the investigating officer did not interrogate her nor recorded her statement. At one place she stated that her mother Smt. Khaliqun was not beaten with lathi but at another place she stated that she had told the investigating officer that Mushtaq had given a lathi blow to Smt. Khaliqun, her mother. She also stated that she had reprimanded the two children when they were quarrelling but this contradicts the statement of Ali Hasan, PW 1. It appears that this witness herself did not see the incident and she had been tutored. No implicit reliance can be placed upon her statement particularly when she being the daughter of the deceased can be called an interested witness.

Rukhsana, PW 3, has not been relied upon for recording the Appellants'' conviction by the trial court itself as she being a child witness could not understand the sanctity of death and was discharged.

Badri Prasad, PW 4, is the scribe of the first information report and is not a witness of incident. His statement regarding taking down Ali Hasan''s dictation of the report has been proved to be false by the admission of Ali Hasan, PW 1, himself that the report was dictated to Badri Prasad by the Sub-Inspector. His statement is also not of any help to the prosecution.

So far as Abdul Halim, PW 5, is concerned he is only a formal witness as he investigated the case. It is, however, noteworthy that he admitted in his cross-examination that Ali Hasan, PW 1, had not told him that Mushtaq Appellant alone had assaulted his wife. He stated that he was told that both the accused had assaulted the victims. This witness further discredits the statement of Anisa, PW 2, that she had told him that a lathi blow was given to her mother by Mushtaq. The statement of Abdul Halim, PW S, is also not of any help to the prosecution.

On the basis of the evidence on record the conviction of the Appellants cannot be upheld. It is, however, very unfortunate that in a case where a young woman of 30 years has lost her life the prosecution has failed to prove its case, may be due to the slip shod manner in which the investigation was conducted. The post mortem examination in this case was conducted after 45 hours of the incident. The dead body had decomposed. From the statement of the investigating officer it is not clear when he despatched the body to the mortuary. The incident took place at about 6.00 p.m. on 11-5-1976. The inquest report was prepared the next morning. This shows the negligence of the prosecution agency. All this goes in favour of the defence.

Before parting with the case I wish to record my appreciation for the assistance which was given to the Court by Sri Shivaji Misra, Assistant Govren-ment Advocate. He saved much of the Court''s time on account of his frank concessions in regard to the weaknesses of the prosecution case. He conducted the case in a manner which reflected that he was fully conscious of his duty towards the case and also towards the Court.

Pursuant to what has been said above the Appellants are entitled to acquittal.

In the result the appeal is allowed and the conviction and sentence of the Appellants are set aside. They are on bail and they need not surrender. Their bail bonds are discharged