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Judgment
Mir, J.
(1) Accused Mir Mohammad, Faiz Hussain, Feroz Din and Lal Hussain residents of Golota Teh: Mendhar were committed by Munsiff Magistrate
1st: Class Mendbar vide his order dated 3041974 to stand trial for the murder of one Moh'd Akbar alleged to have been committed at Chhaon
Pani In the trial court of Sessions Judge, Rajouri all the witnesses for the prosecution as well as defence were examined. Name of the witnesses for
the prosecution are: Basant Ram. Sattar Din, Mohd. Sharief, Lal Mohd, Mohd Latif Rehman Shah, Mohd Rafiq, Nazir Mohd. Mohd Afsar,
Girdhari Lal Head constable, Bola Singh, ASI, Mohd. Afzal Patwari, Kunj Lal SI Police and Dr. Abdul Samad, Medical Officer. Mendhar.
Statements of two witnesses produced by the defence namely, Kundal Lal and Om Parkash were also recorded.
(2) The learned trial court acquitted Lal Hussain but sentenced to life imprisonment the three accused namely, Mir Mohd, Faiz Hussain and Feroz
Din. The accused have filed this appeal against their conviction The learned trial court has also forwarded the case for confirmation of sentence of
life imprisonment imposed by it on the three accused. Both these matters therefore, will be taken up together for consideration in this judgment and
disposed of.
(3) The prosecution story reveals that on the night intervening 5/6th March, 1974 at about 9PM. when prosecution witnesses namely Sattar Din,
Mohd Sharief and Lal Mohd had gone to the house of Mohd Afsar P W to inquire about his health, they and others already in the house of Mohd
Afsar namely, Mohd Latif PW and Mohd Akbar, deceased, heard the noise that looked like being created by stone throwing some where nearby.
It was a bright moon lit night. The prosecution witnesses alongwith the deceased, Mohd Akbar, went towards the place from where the noise was
coming to find as to what was the matter. After covering a short distance all of them cited the accused at Khalsa land known as Chhaon Pani
digging the land and throwing the stones around. All of them went near the accused persons and made them to stop digging the land which was
Khalsa and was used by all the villagers for cattle sitting etc. The accused got offended and became angry. One of them namely. Mir Mohd, after
abusing the prosecution witnesses cried to his companions to catch hold of them and finish them. As soon as he uttered these words, he
simultaneously gave a blow from the blunt side of the Rambi on the left thigh of Sattar Din PW. Feroz Din, the other accused, inflicted a lathi blow
on the head of Sattar Din PW Sattar Din fell on the ground. Feroz Din then caught hold of Mohd. Akbar deceased who was in the process of
running away from the spot and Mir. Mohd. accused inflicted a blow on the head of Akbar from the blunt side of Rambi. Faiz Hussain followed
Mir Mohd and inflicted a blow with lathi on the head of Akbar deceased Akbar on receiving these blows on his head fell down and all accused
together then gave him a beating The deceased fell and lay unconscious on the ground. While Sattar Din was carried away from the spot by his
brother on his back the deceased Mohd. Akbar remained for some time lying on the spot. The accused immediately made good their escape from
the scene of occurrence. Immediately there after Mohd Rafiq and Nazir Mohd PW also cams on the spot. Mohd. Latif and Lal Mohd PWs went
to contact the Nutnbsrdar, Basant Ram. The Numberdar came and took Nazir Mohd PW with him to the Pole Post Gursain, Mendhar They
verbally reported the matter to the police and brought Girdharilal Head Constable Gh. Hussain constable PWs to the place of occurrence. The
deceased Akbar was still breathing at that time. He was put on a cot but on his way to hospital he breathed his last at Addi. His postmortem was
conducted by Dr. Abdul Samad. He certified on postmortem that the death has been caused due to the head injuries. The police started the
investigation and registered the case against the accused u/s 302 RFC
(4) Prosecution witnesses Sattar Din, Mohd Sharief, Lal Mohd Latif, and Rehman Shah have been produced and examined as eye witnesses of
the occurrence.
[Note The statements of PW produced in the judgement are OmittedEd]
(5) During the arguments, learned counsel for the accused has laid much stress on the fact that the report lodged by Basant Rani and Nazir Mohd
at the police was not signed by them or either of them. According to him the report lodged was in the nature of F. I R. and as required u/s 154 Cr.
P. G. it had to be signed by the maker thereof. He contended that as the report was not signed it could not be read as evidence against the
accused. In this connection he further contended that the copy of the report had not been forwarded to the Magistrate in time and therefore, also
the contents of the report had become suspicious and the effect was that the report could not be read against the accused. We, however, do not
agree with his contention. It was admitted by Girdhari Lal Head constable who recorded the report lodged by Basant Ram that the signature of
Basant Ram were not obtained at the time he lodged the rep3ft. It may be that the signatures of the person who lodged the report, is usually to be
obtained on the report, yet the report itself would not cease to be a valuable piece of evidence simply because the maker thereof had failed to sign
it at the time he made it before the police, and this was so in particular when during the trial the person who lodged the report was examined as a
witness and he supported the contents of the report in all its particulars. The necessity and importance of obtaining or failure to obtain a signature
on the F. I. R. may arise with justification if the maker there of during the trial denies to hive lodged such a report controverts to have made certain
observations found in the report. Though the requirement of law and necessity of completely following the procedure enumerated in Sec : 154 Cr.
P. C. so far as recording of the FIRs was concerned could not be minimised, yet if a particular direction given in this provision of law is not strictly
followed in a particular case, its effect upon the case has to be determined only in the light of the circumstances appearing in the case. It has to be
seen as to whether the maker of the report during the trial supports its contents or not If he does, then mere omission that at the time of lodging of
the report he had not signed it loses importance. The FIR is not used as evidence to corroborate or contradict witnesses other than the maker of
such report. The FIR is, of course, a document of great importance but it is not a piece of substantive evidence and is used mostly as a previous
statement admissible to corroborate or contradict the author of such report The absence of a signature of the maker of the FIR, therefore, does not
lessen the value of the report, the condition prescribed u/s 154 Gr P. C. being procedural, On the facts of the instant case the mere absence of
signature of the 1st : informant on the F. I. R. does not minimise its value as the contents of the report have been admitted both by Basant Ram and
Nazir Mohd P. Ws.
(6) The next point raised by the learned counsel for the accused was that the copy of the F, I. R. was not immediately despatched to the court of
Magistrate as required under Sec : 157 Gr. P. C. On facts, however, we have not been able to find that the copy of the report was in fact sent to
the Magistrate after inordinate delay. A copy of the report appears to have been sent to the court of Magistrate through Police Station Meodhar
which, of course, has taken about a day, and under the circumstances we feel that the delay was not of such a duration as would make us to agree
with the contention of the learned counsel for the defence when he says that the copy of the report was not sent in time to the court of the
Magistrate only to cook upa false case against the accused persons.
The learned counsel for the defence then submitted that the case against the accused was false as the accused in his view were involved by the
prosecution witnesses to have committed this heinous crime only because of the previous enmity between the parties. According to Sattar Din PW
Mir Mohd accused and some others had reported about a cow killing case against his father and others in which Basant Rain had also appeared as
a witness. We are persuaded to deduce from this that because of the case which ended some 78 years before the occurrence in question took
place, the enmity between the parties continued and Sattar Din and other conspired together to make revenge upon Mir Mohd accused and
others. We are however, unable to be so persuaded. Even if there had been a cow killing case, it was admittedly some 78 years before the
occurrence in this case took place and then also the father and some relatives of Sattar Din only were allegedly involved and not the fathers or
other relatives of any other P. Ws. May be, the factum of digging the piece of common land and an attempt to exclusively possess the same might
have created some bickering against the accused in the village but that would not be enough reason of the villagers to falsely involve the accused in
a heinous crime of murder. This was no reason for the witnesses to implicate the accused persons falsely in a matter where one of their covillagers
had died.
(7) It was true that most of the witnesses in general and the eye witnesses in particular were relatives of the another and of the deceased. The
contention of the learned counsel for defence that because of the relationship with the deceased, their depositions should be discarded as nature
and disbelieved, could not be entertained. The circumstances appearing in the case show that these witnesses were sitting together at Mohd Afsar's
house from where they we at to Chhoan Pani on hearing the noise to see for themselves as to what was going on. It was late in the night and other
villagers therefore, could not be reasonably expected to be out of their houses at that time of the night Moreover, there is no evidence to show that
there where in fact other neighbours living rear the place called Chhoapari. Merely because the witnesses happen to be the relatives of the
deceased, their statements could not be discarded on this score alone as in our view, the relatives could be more reliable in such a case and it
could only reasonable to conclude that the effort of the relatives would be always to bring the real culprits to book. There, of course, may be cases
where witnesses may be interested to involve falsely some one nor the culprit but then so far as the case of real culprits goes it is always natural that
the relative witnesses of the deceased would speak the truth with regard to the part played in the occurrence by the real culprits. We are not
therefore, inclined to reject the statements of the three eye witnesses who happen to be relatives of the deceased as untruthful on the mere ground
of their relationship with the deceased, Moreover, there is Rehman Shah PW, who is not a relative either of the deceased or of any other
prosecution witness. This witness has been the occurrence from his Gharat and according to him he had either also asked the accused not to dig
out the common land but in reply had been told to mind his own business. There is however, difference of opinion between the patwari and the S.
H O as to the distance between the Gharat and the place of occurrence According to the patwari the distance was about 8/9 Jaribs while the S. H.
O. says that the Gharat was only at a distance of 29 steps away from the place of occurrence. Even if the statement of Patwari in this regard be
taken as more trustworthy it would still have been possible for the P. W. Rehman Shah to witness the occurrence from his Gharat, as according to
al' the witnesses of the prosecution the night on which the occurrence took place was a bright moonlit night. In any case, however, whether the
statement of PW Rehman Shah is or is not taken into consideration, the statements of other eye witnesses are there and we have not found any
serious lacuna in these depositions with regard to the actual occurrence on spot.
(8) The next contention raised on behalf of the accused was that the accused were in possession of the place of occurrence and therefore, the
PWs or the deceased had no right to make forcible entry into the land snatch away the piece of land from the Possession of the accused and if they
did so and a male as a result took place in which the accused had to put a resistance in self defence they committed no offence, even if one of the
attackers was killed. On the facts of the casa it was apparent that the prosecution party had gone to Chhoapani, only to persuade the accused
party to desist from digging a piece of land which belonged to whole of the village and which was used as a resting place and watering place for the
cattle of the residents of the village. Their peaceful intentions are manifest from the fact that none of them carried any weapon nor even a stick.
Even the accused have not alleged in their statements in the court that any of the prosecution party was armed with any weapon whatsoever. The
evidence which they led in defence is also completely silent on this point. The fact that none of the accused had received any injury also goes to
show that the intention of the prosecution party was peaceful as otherwise they would also have carded arms and would have launched an attack
or retaliated at the time of occurrence. The piece of land, according to the patwari, was a khalsa laud and therefore, did not belong to the accused.
They therefore, had no right to inflict injuries on one person and cause death of the other merely because they thought that it was their property or
that they were in possession do not therefore, agree with the contention of the learned counsel for the defence that the accused party, if at all has
merely exceeded in their self defence in taking the section as they have.
The learned counsel then referred to the disclosures made by the accused persons as a result of which the weapons of attack were recovered from
their possession and has said that these disclosures were admissible in evidence u/s 25 and 26 of the Evidence Act as the same were in the nature
of confessions. We do not agree with this contention also. From the perusal of the documents it was apparent that the articles of attack, such as,
lathi and rambi were recovered at the instance of the accused persons from their houses. The Exhibits no doubt, contain the words ""alia zarar"" with
regard to these weapons which are interpreted by the learned counsel for the defence to mean that these were the weapons which were used by
the accused in murdering the accused. From a perusal of the exhibits it is apparent that the words ""alia zarar"" do not appear to convey such a
meaning However, even if the contention of the learned counsel for the accused is upheld and the discoveries ""made at the instance of the accused
are held to be irregular and against law and the exhibits are not therefore, taken into consideration against the accused persons, the effect would be
negligible as the other evidence on record especially the evidence of the eye witnesses was enough to show that the accused have been guilty of
committing murder of Mohd Akbar deceased. (9) The learned counsel for the defence then referred to some discrepancies between the deposition
of the witnesses for the prosecution and that of the investigating officer in so far as the recording of their statements by the Investigating Officer was
concerned. According to him some of the witnesses have said that their statements were recorded on 7th March while the Investigating Officer has
said that they were recorded on 6 or 7th March and therefore, it was submitted by the learned counsel that the action of the Investigating Officer in
not having recorded the statements of witnesses on one and the same day was such as would show that the Investigating Officer was trying to
mark time for creating evidence. This cointention also could not be maintained as on the facts of the case it was apparent that the Investigating
Officer has wasted no time in recording the statements of the witnesses and as soon as possible he has recorded their statements.
(10) One of the accused persons, namely Lal Hussain has been acquitted by the learned Sessions Judge under sec 302 RPC and has been
convicted to a simple imprisonment for one month u/s 323 R. P. C. It was therefore, obvious that the learned trial court did not rely on the
allegations of the prosecution that all the accused persons conspired together to finish of Akbar deceased. If the allegation of common intention of
a conspiracy as alleged by the prosecution had been established and believed by the trial court, Lal Hussain, however, minute part he might have
played in the scuffle, had to be convicted and sentenced as other accused u/s 302 R P.C. A perusal of the charge frame with the Munsiff
Magistrate Mendhar and acted upon in the trial court, would show that none of the accused was charged u/s 34 RPC. All of them have bean
separately charged u/s 302 RPC only. From the evidence recorded it also appears that there was no previous concert or common intention or
consultation amongst the accused persons to injure Sattar Din or murder Mohd Akbar deceased. From the evidence it appears . that when the
accused found themselves face to face with the prosecution party they individually, of their own, took whatever, weapon they could seize and used
the same against the deceased and Sattar Din. PW. On the facts on record, it has not possible to deduce that the accused conspired amongst
themselves to resort to actions to which they did. In our view therefore, the accused could not have been sentenced u/s 302 read with Sec : 34
RPC, more so when they were not charged as such. The statement of Doctor PW was of considerable assistance and value in this regard.
According to him all the injuries inflicted on the head of the deceased were of a nature which could have been inflicted independently and each
could have caused the death of the deceased. In other words it means that the strike on the head with Rambi or the stoke on the head with lathi
independent of each other would have finished the deceased. In this view of the matter we think that Feroz Din who had not given any blow to the
deceased has not been rightly convicted u/s 302 read with sec. 34 RFC. He too had not been charged under section 34 RPC and therefore could
be held reasonable only for such act which is attributed to him in the quarrel. It is alleged that he prevented the deceased from running away from
the piece of occurrence and hit Sattar Din on the head and legs The nature of injuries received by the PW Sattar Din is not given. The accused
Feroz Din, therefore, may at best be said to have committed offence of wrongful restraint and causing injury. He is therefore, acquitted u/s 302/34
RPC and convicted u/s 342 RPC for a period of one year and for voluntarily causing injury u/s 342 RPC for a further period of one year. Both
sentences to run one after the other. As the accused have been convicted and sentenced by the order of the trial court dt 18.9.75. Feroz Din has
been in prison for more than two years and as such he has served his term of imprisonment and he is therefore, ordered to be released from prison
for with.
(11) We, however, are of the opinion that the accused Mir Mohd and Faiz Hussain have been rightly convicted by the learned Sessions Judge u/s
302 RPC and the punishment awarded in their cases do not require any alteration. The appeal of Mir Mohd and Faiz Hussain accused is therefore,
rejected and that of Feroz Din is allowed to the extent indicated above.
(12) This also disposes of the Reference for confirmation made by the learned Session Judge.
(13) The accused Faiz Hussain and Mir Mohd. if on bail be arrested forthwith and lodged in the prison.