JUDGMENT M.M. Lal, J.
1. This is an appeal against the judgment and order dt. 24-6-78 passed by Sri R. P. Jain, the then Sessions Judge, Etawah, by which he has convicted Mah-mood Ilahi, appellant under Section 302/34, I.P.C. and has sentenced him to undergo imprisonment for life.
2. Whereas Ghulam Abbas deceased aged about 45 years was a resident of village Hajji Ka Purwa P.S. Phaphund, Mahmood Ilahi appellant was resident of Mohalla Saidwara in village Phaphund. Ghulam Abbas deceased had also a house in the said Mohalla Saidwara in village Phaphund. Sometimes Ghulam Abbas used to reside with his family in Mohalla Saidwara in village Phaphund.
3. According to the case of the prosecution from 3 or 4 years prior to the date of the incident the appellant had developed illicit relation with Smt. Meraj Fatma wife of Ghulam Abbas deceased. The, appellant used to visit the said lady in the absence of the deceased. The deceased had asked the appellant a number of times not to visit his wife and the same had also led to a quarrel two or three times between Ghulam Abbas deceased and the appellant. About 5 or 6 months prior to this occurrence aforesaid Smt. Meraj Fatma had gone away with the appellant along with some cash and ornaments and had started living with him in a house at Etawah.
4. It is further the case of the prosecution that on 3-9-1977 at about 11.30 p.m. when Ghulam Abbas deceased was sleeping on a cot on a road adjoining to his maize field in village Hajji Ka Purwa, the appellant along with his three unknown companions came there and started beating Ghulam Abbas deceased with 'Lathis' as a result of which he sustained many injuries. A hue and cry was raised which attracted Shabbir Hasan and Masooq AH, who were sleeping nearby on the same road, to the place of occurrence. When they challenged the assailants they ran away. The night of the incident was stated to be moon lit night.
5. On the next day, i.e. 4-9-1977 at 8 a.m. Ghulam Abbas went to Police Station Phaphund, where he lodged a report of the incident under Section 323, I.P.C. Ghulam Abbas deceased then went to District Board Hospital at Phaphund, where his injuries were examined by a Medical expert on the same date at 10.03 a.m. His medical evidence revealed that he had sustained the following injuries:
1. Lacerated wound on upper border of occipital bone of skull. Transversely measured 21/2 cm x 2 cm 11/2 cm margins were irregular. Discharge was serious.
2. Contused wound on right parietal region. 31/2 cm from upper border of pinna on right side of skull. Margins were not clear cut, clotted blood was present tender oedema was also present. Measured 11/2 cm x 1 cm.
3. Contusion on right side of chest oh lower ribs, measured 9 cm 2 cm bluish in colour, tender transversely.
4. Abrasion right elbow joint on olecranon process measured 1 cm. x 1 cm crest formed joint was tender.
5. Lacerated wound on left side of perineum measured l1/2 cm x 1 cm irregular margins. Blood clotted around the wound.
6. Contused wound on top of left shoulder 1 cm x 1 cm x skin deep blood clotted around the wound.
7. Abrasion on left hypochondrium 2 cm x 1/2 cm crest formed.
6. According to the doctor except injuries Nos. 4 and 7 which were result of friction other injuries were caused by a blunt weapon, and at the time of examination were about half day old.
7. Ghulam Abbas succumbed to his injuries on 4-9-1977 at 8.30 p.m. On the same night at 9.05 p.m. Syed Nazar Abbas, son of Ghulam Abbas deceased, gave a report regarding the death of his father at the police station, whereupon this case was registered and converted under Section 302, I.P.C.
8. The post-mortem examination of the dead body of Ghulam Abbas deceased was conducted by Dr. Chandra Prakash, Superintendent Distt. Hospital Etawah on 5-9-1977 and he found the following antemortem injuries on his dead body:--
1. Lacerated wound 1" x 4/10" bone deep on the right side parietal occipital region 3" behind right ear obliquely.
2. Lacerated wound 9/10" x 1/10" x muscle deep obliquely on right parietal part of skull 21/2" above right ear.
3. Abrasion 6/10" x 2/10" on the right side chest 11/2" below and medial to right nipple obliquely.
4. Abrasion 6/10" x 2/10" on the right elbow laterally and obliquely.
5. Contusion 5" x 1" on the, right side subcostal margin transversely 6" below right nipple. On exploration 6th, 7th and 8th ribs pf right side found fractured along with laceration of right lobe of liver underneath.
6. Abraded contusion 7/10" x 1/2" on the top of right shoulder obliquely.
7. Abraded contusion 1-8/10" x 1/2" on the top of right shoulder obliquely.
8. Abrasion 2/10" x 2/10" on the right side back lower one third part 1 1/2" away from mid line.
9. Abrasion 1" x linear on the right side of outer aspect middle one third transversely.
10. Abrasion 1" x linear on the right side of outer aspect middle one third transversely.
11. Abraded contusion 11/4 x 3" or on the left side abdomen just below and parallel to subcoastal margin.
12. Lacerated wound 7/10" x 2/10" * muscle deep on left side of Anal fold in front aspect just below left scrotum.
9. On internal examination the doctor found that 6th and 7th and 8th ribs on right side were fractured. In the liver right anterior lobe 41/2" x 3/4" area transversely was found lacerated.
10. According to the doctor the death was due to shock and haemorrhage as a result of aforesaid injury No. 5.
11. In support of its case the prosecution examined nine witnesses. P.W. 1 Shabbir Hasan and P.W. 2 Mashooq Ali were eye witnesses. However, P.W. 2 Mashooq Ali did not support the prosecution. P.W. 5 Maqbool Hasan had reached the place of occurrence immediately after the incident and the aforesaid two eye witnesses had narrated the incident to him. P.W. 3 Rama Shanker Pande was a clerk constable at P.S. Phaphund. He had proved the report lodged under Section 323, I.P.C. and the subsequent conversion of the case under Section 302, I.P.C. P.W. 7 Dr. Sheo Kripal Singh, M.O. had examined the injuries of Ghulam Abbas deceased on 4-9-1977. P.W. 4 Dr. Chandra Prakash had conducted the post-mortem examination of the dead body of Gulam Abbas deceased. P.W. 8 Dhrampal Singh S.I. had prepared the inquest report of the dead body of Ghulam Abbas deceased P.W. 9 Kalyan Singh S.I. had executed the warrant under Sections 82/83, Cr. P. C. against the appellant.
12. The investigation of this case was made by P.W. 6 Baladin Yadav, S. O. He had started investigation of this case from 6-7-1977, when he recorded the statements of eye Witnesses, etc. He had also inspected the place of occurrence and prepared the site plan thereof.
13. The appellant in his statement denied the case of the prosecution. He further stated that his father was running a petty shop at Phaphund, and 8-10 days prior to this incident there was a quarrel between him and Shabbir Hasan and that the other witnesses were under influence of said Shabbir Hasan. The appellant, however, did not produce any evidence in defence.
14. Learned Sessions Judge believing the case set up and the evidence produced by the prosecution has convicted and sentenced the appellant as aforesaid. Aggrieved by the same the appellant has filed this appeal.
15. We have heard the learned counsel for the appellant, complainant and the State and have perused the record carefully.
16. The prosecution has set up a motive in this case. As already stated the case of the prosecution is that the appellant had developed illicit relations with Smt. Meraj Fatma wife of Ghulam Abbas deceased so much so that he had on 4-2-1977 enticed her away and had started living with her at Etawah. Learned counsel for the State has urged before us that it was with a view to remove the hurdle from his way that the appellant had committed the murder of Ghulam Abbas. As against the same learned counsel for the appellant has argued before us that when Smt. Meraj Fatma was aged about 40-42 years and had six children, including a son aged 18 years, it was not likely that the appellant (see his statement recorded under Section 313, Cr. P.C.) who was aged about 22 years only, would have developed any illicit relations with her. He has further urged that even if the case of the prosecution was to be accepted as to the fact that the appellant had enticed away Smt. Meraj Fatma about six months prior to the incident and was living with her, there was no question of the appellant taking the life of Ghulam Abbas unnecessarily. In our view when Ghulam Abbas deceased in his lifetime on 26-3-1977 had lodged a report against the appellant stating therein that the latter had enticed away his wife, it would be difficult to disbelieve the evidence produced by the prosecution that there was intimacy between the appellant and Smt. Meraj Fatma. We are also of the view that on account of the said illicit relation between the appellant and Smt. Meraj Fatma, the appellant could have a motive to commit murder of Ghulam Abbas. Equally on account of the said illicit relation Ghulam Abbas deceased and others could suspect that the aforesaid murder may have been committed by the appellant. This is a case of direct evidence in which motive does not play a major role. It shall have to be seen in this case as to whether it was a fact that due to aforesaid intimacy with Smt. Meraj Fatma the appellant had committed this crime or that on account of the said intimacy the appellant had been merely named because of suspicion.
17. Learned counsel for the appellant has urged before us that there has been delay in lodging the FIR and that the said delay has not been explained in this case. There is considerable force in the said argument. It may be noted that whereas this incident is alleged to have taken place on 3-9-1977 at 11-11.30 p.m., the report of the incident was lodged on the next day, i.e. 4-9-1977 at 8 a.m., i.e. after an interval of nine hours. It may be noted that Police Station, Phaphund, where the said report under Section 323, I.P.C. was originally lodged, was situate at a short distance from the place of occurrence. P. W. 3 clerk constable Rama Shanker Pande has deposed that the place of occurrence was situate at a distance of 31/2 miles from the Police Station. P.W. 5 Maqbool Hasan has however, given the said distance as six furlongs. P.W. 6 Baladin Yadav S.O., who investigated this case, has, however, stated that the place of occurrence was only 11/2-2 furlongs away from the Police Station; Phaphund. Whichever version may be accepted it is obvious that the place of occurrence was close to the Police Station and the report of the incident could have been lodged promptly. For the reasons best known to the prosecution the same was not done. There is not a word of explanation as to how and why the report of the incident was lodged with such delay.
18. Ghulam Abbas deceased was a man of property. It has come on record that he possessed 6-7 acres of land. He had sustained serious injuries. As may be seen from the postmortem examination report 6th, 7th and 8th ribs of his right side had been fractured. There was a laceration in his liver. Dr. Chandra Prakash P.W. 4, who had conducted the postmortem examination of the dead body of Ghulam Abbas, has stated in his evidence that on account of damage to the liver there was internal bleeding. He further stated that there would have been profuse bleeding on account of damage to the liver and that on account of the fracture of ribs there would have been difficulty in breathing. P.W. 1 Shabbir Hasan has stated in his evidence that after the incident the deceased was not in a position to move about. He has further stated in his evidence that the deceased was little conscious. Learned counsel for the appellant has urged before us that probably on account of the aforesaid severe injuries Ghulam Abbas remained lying unnoticed in an injured condition at the spot and that when the day broke out he was noticed and was taken to Phaphund for report at the Police Station and for his medical examination because otherwise with so many serious injuries he would not have been kept without medical aid in the village for nine long hours. Whatever the position may be the fact remains that there was a delay in lodging the FIR and that the said delay had not been explained in this case. The First Information Report, therefore loses its corroborative value.
19. In order to prove its case against the appellant the prosecution has firstly produced two eye witnesses in this case. They were P. W. 1 Shabbir Hasan and P.W. 2 Mashooq Ali. Out of them Mashooq AH P.W. 2 did not Support the prosecution but on the other hand stated that on the date of the incident he was away to Etawah and that therefore he had not seen the incident. Thus P.W. 1 Shabbir Hasan is the only witness who has tried to give an eye witness on account of the incident. It has to be seen as to whether the evidence of this witness is such which may be believed and relied upon.
20. P.W. I Shabbir Hasan has stated in his evidence that at the time of the incident he was sleeping at a distance of 50-55 yards from the place where Ghulam Abbas deceased was sleeping. The said two respective places are shown by the Investigating Officer in the site plan. P.W. 1 Shabbir Hasan has deposed that as soon as he and Mashooq Ali arrived at the place of occurrence the 'Marpit' had stopped; and that when they (witnesses) reached, the assailants ran away towards Phaphund in the north. In our opinion when the incident is alleged to have taken place at 11-11.30 p.m. P.W. 1 Shabbir Hasan, even if he may have been sleeping close by, would have obviously taken some time to get up after hearing the cries and to gather his wits. It would have also taken him some time to cover the distance of 50-55 yards for going to the place of occurrence. We are also of the view that if immediately on seeing the witnesses coming the assailants had run away in the opposite direction, i.e. in the north, then at best P.W. 1 Shabbir Hasan, who was coming from the southern side, would not have been in a position to see the faces of the assailants.
21. There was also not sufficient light which would have permitted P.W. 1 Shabbir Hasan to see and recognise the assailants from a distance. The case of the prosecution is that the incident had taken place at 11 p.m. On that night the moon had come out at 9.56 p.m. Therefore, moon would not have been very bright at that time. Besides, P.W. 1 Shabbir Hasan has himself admitted that the incident had taken place under mango trees which were 3-4 in number and were as old as 40-50 years. When this was so there would not have been sufficient light at the place of occurrence which would have permitted the witnesses, in the, position of the P.W. 1 Shabbir Hasan, to see and recognise the assailants.
22. P.W. 1 Shabbir Hasan cannot be said to be a very independent witness as well. He has admitted that he was neighbour of Ghulam Abbas deceased. It appears that due to this affinity that he had come forward to depose in favour of the prosecution.
23. The evidence of P.W. 1 Shabbir Hasan therefore does not inspire confidence and it is difficult to place reliance upon him.
24. Over and above the direct evidence the prosecution in this case has further produced P.W. 5 Maqbool Hasan, who gave res gestae evidence under Section 6 of the Evidence Act. This witness has deposed that on hearing the hue and cry he had immediately come to the place of occurrence, where P.W. 1 Shabbir Hasan and Masooq Ali P.W. 2 told him that the appellant and the three unknown persons had beaten and caused injuries to Ghulam Abbas. This witness is purely a got up witness. P.W. 6 Baladin Yadav I.O. has admitted in his evidence that Maqbool Hasan P.W. 5 was a witness of Panchayatnama. In order to overcome this difficulty P.W. 5 Maqbool Hasan went to the extent of even denying that he was interrogated by the Investigating Officer. He, however, admitted that he was a witness of 'Panchayatnama. Learned counsel for the defence urged before us that the Court by perusing the case diary may satisfy itself that P.W. 5 Maqbool Hasan in his statement recorded by the Investigating Officer under Section 161, Cr. P.C. had not stated that he had gone to the place of occurrence immediately after the occurrence or that P.W. 1 Shabbir Hasan or any other witness had disclosed the names of the assailants to him. We are satisfied that P.W. 5, Maqbool Hasan was simply a witness of Panchayatnama and that therefore his res gestae evidence under Section 6 of the Evidence Act cannot be believed at all.
25. Lastly, the prosecution has placed reliance upon dying declaration. Learned counsel for the State has urged before us that when after the incident Ghulam Abbas deceased had lodged a non-cognizable report under Section 323, I.P.C., the same should be treated and read as dying declaration. No doubt the said report can be read as a dying declaration but the question to be determined is whether reliance should be placed upon the said dying declaration.
26. P.W. 1 Shabbir Hasan has stated in his evidence that when he reached at the place of occurrence Ghulam Abbas deceased was lying on the bed. It appears that injuries were caused to Ghulam Abbas at the time when he was sleeping and lying on the cot. We have already observed that on account of old mango trees under which Ghulam Abbas was sleeping and otherwise as well there was no sufficient light at the place of occurrence.
This is why Ghulam Abbas in his dying declaration has also not referred to any source of light. Thus when there was no sufficient light at the place of occurrence Ghulam Abbas would have felt difficulty in recognising his assailants. Furthermore, when Ghulam Abbas remained lying on a cot throughout the incident his view to see on all the four sides of the cot would have obviously been restricted. Therefore, it cannot be said that Ghulam Abbas had full opportunity to see and recognise his assailants. Then in view of R. 102 of the U.P. Police Regulations. It was only the important portion of the said report of the non-cognizable offence which would have been recorded in the Check Receipt Book. It is thus not a case where the very words uttered by the deceased would have been recorded in the aforesaid report. No doubt clerk constable P.W. 3 Ram Shanker Pande has stated in his evidence that in the said report the words uttered by Ghulam Abbas were written verbatim by him. This is obviously not true because in the said report reference is made to such words as ^^ewyfte mijksDr** (accused aforesaid) and ^^eqyfte mijksDr [kkuk ua- 2** (accused aforesaid referred in column No. 2), which would not have been spoken by the deceased, who was an illiterate person. There is also no evidence on the record to show that Ghulam Abbas at the time of making the aforesaid statement in the report was in a fit state of mind. We have already observed that the aforesaid "Marpit" had resulted in the fracture of three ribs of Ghulam Abbas. His liver had been lacerated. There has been profuse bleeding. He was unable to walk immediately after the incident. Then before the said dying declaration was recorded Ghulam Abbas had come in contact with many other persons, like his son who are hostile to the appellant. Moreover, when P.W. 5 Maqbool Hasan and P.W. 2 Masooq Ali have not been believed, there is no corroboration to the said dying declaration. Besides, we have already observed that the said non-cognizable report under Section 323, I.P.C., which is now sought to be treated as dying declaration, was lodged with delay and that there was no evidence whatsoever to explain the said delay. In view of these infirmities we do not find it safe to place reliance upon the dying declaration made by Ghulam Abbas.
27. In the result and for the reasons stated we are of the opinion that the case of the prosecution was not made out against the appellant beyond reasonable doubt and that therefore this appeal is liable to be allowed.
28. Accordingly, this appeal is allowed and the conviction of Mahmood Ilahi appellant under Section 302/34, I.P.C. and his sentence to life imprisonment thereunder are hereby set side. He is on bail. He need not surrender to his bail bonds, which hereby stand discharged.