JUDGMENT V.D. Chaturvedi, J.
1. This criminal appeal is directed against the judgment and order dated 14.05.1981 passed in Sessions Trial No. 125 of 1980 by Sri Vikram Kulshrestha, the then VIII Additional Sessions Judge, Azamgarh, whereby the appellants Qamaru-Zama has been convicted under Sections 148, 302, 325/149 and 324/149 I.P.C. and sentenced to 1 ½ year R.I., life imprisonment, 3 years R.I. and 2 years R.I. respectively. The appellants, Imtiaz and Maqbool have been convicted under Sections 148, 302/149, 325/149 and 324/149 I.P.C. and sentenced to 1 ½ year R.I., life imprisonment, 3 years R.I. and 2 years R.I. respectively. The remaining appellants Samkadar, Hasnain, Munsafi, Ramjan, Ayoob, Mohd. Yusuf, Gayasuddin, Anwar and Sharif have been convicted under Sections 147, 302/149, 325/149 and 324/149 I.P.C. and sentenced to one year R.I., life imprisonment, 3 years R.I. and 2 years R.I. respectively.
2. The prosecution version, as disclosed by P.W.2 Ali Raja in the F.I.R. lodged at 9.25 a.m. on 19.12.1979 at P.S. Raunapar, Azamgarh was that there was a dispute between him and the accused (appellants) regarding the flow of the drainage of his latrine which was disrupted by the accused appellants by making constructions and by raising the level of their land; that a civil case filed by him was pending in court; that on 19.12.1979 at about half past 7 a.m. he (AH Raza) and his brothers Abdul Qayum (deceased) and Mustakim(P.W.3) were cleaning the Nabdan (the filthy water of their latrine); that the accused appellants Qamaru-Zama, Maqbool, and Imtiaz armed with spears and the accused-appellants Samkadar, Hasnain, Munsafi, Gayasuddin, Sharif, Ramjan, Ayoob, Yusuf and Anwar armed with lathis, having common object, reached there and forbade him and.his brothers from cleaning their Nabdan; that the witnesses Haji Usman, Daud and Salauddin also reached there; that he and his brothers did not stop the said cleaning work whereupon accused-appellant Qmaru-Zama, with intention to commit murder, inflicted a spear blow on Abdul Qayum (deceased) and accused-appellants Maqbool and Imtiyaz inflicted spear blows on P.W.3 Mustakim (injured); that remaining accused surrounded him and his brothers, by swinging their lathies and exhorting their companions; that Abdul Qayum and Mustakin sustaining spears blows, fell on the ground and Abdul Qayum succumbed to his injury; that many villagers had assembled there; that accused-appellants fled away towards their houses.
3. The investigating Officer Sri Onkar Singh (P.W.8) reached the spot, prepared the necessary documents and sent the dead body for postmortem. The injured Mustakin was sent for his medical examination.
4. P.W.6 Dr. G.M. Lal conducted autopsy of Abdul Qayum on 20.12.79 at 3.30 p.m. and found a single ante mortem injury on his corpse. The injury is reproduced below:
(1) Punctured wound ½ cm. x ½ cm. x cavity deep on the left side chest, 3 " above the left nipple, margin sharp irregular.
5. The Doctor found duration of death as one 5 and a half day. It tallies with the time of occurrence. In his opinion, the death occurred due to shock and haemorrhage as a result of ante -mortem injury.
6. The injured MustakimP.W.3 was medically examined by P.W.6 Dr. G.M. Lal on 19.12.1979 at 2 p.m. The following injuries were found on his person:
1. Lacerated wound 1.5 cm. X ½ cm. on the left side head, 8 cm. above the lobe of left ear.
2. Dislocation of right shoulder joint with traumatic swelling 7cm x 4 cm. with deformity. Advised X-ray of right shoulder.
3. Punctured wound 1 cm. x ½: cm. x 1 cm. deep on the left ilium.
4. Traumatic swelling 3 cm. x 2 cm. on the left thigh. Advised X-ray.
7. Injuries No. 2 and 4 were kept under observation and X-ray of these injuries was advised. Injuries No. 1 and 3 were found simple. In Doctor's opinion, injury No. 2 was grievous as there was dislocation of shoulder. Injury No. 3 was caused by sharp pointed weapon and the remaining injuries were caused by blunt object.
8. After recording the statements of the witnesses and after usual investigation, P.W. 8 Omkar Singh (I.O.) submitted the charge sheet Ext. Ka. 18 against all the accused persons for offences under Sections 147, 148, 149, 325, 324 and 302 IPC.
9. The case was committed to the court of Sessions, the charges were framed against the accused-appellants and thereafter eight prosecution witnesses and one Court witness were examined.
10. The accused- appellants denied the circumstances appearing against them in their statements under Section 313(1)(b) Cr. P.C. and pleaded that they were falsely implicated. The appellant Qamru-Zama took the plea of alibi and stated that he was admitted in Govt. hospital situated at Birno, district Ghazipur from before the date of occurrence.
11. The appellants examined D.W. 1 Shambhu Nath Chaubey, the then compounder, D.W.2 Dr. Ashok Kumar Sinha, the then Medical Officer (both posted at P.H.C. Birno) and D.W.3 Jhinnu Khan.
12. The learned trial court after the scrutiny of the evidence convicted the appellants and sentenced them as above.
13. We have heard Sri G.S. Chaturvedi, the learned senior Advocate assisted by Sri Zaffar Abbas for the appellants and Sri M.C. Joshi, learned A.G.A. for the State. We have also gone through the record carefully. It would be helpful to first have a glance on material evidence.
14. P.W.2 Ali Raza (complainant) deposed on 24.11.1980 that about 11 months back at about half past 7.00 a.m. he and his brothers Mustkin and Abdul Qayum were cleaning their Nabdan situated near the boundary wall of Samkadar; that the deceased Abdul Qayum was digging a pit whereas he and Mustkin were extracting the soil; that meanwhile accused Qamru Zama, Maqbool, Imtiaz, Samkadar, Hasnain, Munsafi, Mohammad Yusuf, Gayasuddin, Sharif, Ramjan, Ayoob and Anwar reached there; that accused Qamru Zama, Maqbool and Imtiaz were armed with spears and rest were armed with lathies; that accused persons forbade him and his brothers from cleaning Nabdan but he and his brothers declined to their objections; that the witnesses Usman, Daud and Salauddin also reached there; that a hot altercation between the accused persons and him and his brothers ensued; that accused persons said "MAR DALO SALO KO VA HADDI PASLI TOD DO" whereupon the accused Qamru Zama inflicted a spear blow on Qayum who sustaining spear injury fell down; that accused Maqbool and Imtiaz with their spears attacked upon Mustkin who sustaining injury also fell down; that he (Ali Raja) succeeded in escaping and fleeing away; that accused persons had inflicted a lathi blow also upon Mustkin; that Abdul Qayum had died at the spot; that the occurrence was witnessed by Usman, Daud, Salauddin and Yusuf and also by the accused's relatives Isimdar, Kalwe Husian, Aihsan and Sadar Uddin; that after committing the occurrence the accused persons left for western side.
15. P.W.3 Mustkin (injured) deposed on 25.11.80 that the occurrence took place one hour after the sun-rise about 11 months back; that he and his brother Ali Raza were cleaning their Nabdan and his another brother Abdul Qayum was digging a pit; that twelve accused persons (Qamru-Zama, Maqbool, Imtiaz, Munsafi, Gayasuddin, Mohd. Yusuf, Hasnain, Sharif, Ramjan, Samkadar, Ayoob and Anwar) after forming an assembly, reached there; that the accused Qamru-Zama, Maqbool and Imtiaz were armed with spears whereas the other nine accused persons were armed with lathies; that the accused persons asked him and his brothers not to clean the Nabdan; that witnesses Usman, Salauddin and Daud also reached there; that he and his brothers did not stop the work even after the objection of the accused persons whereupon they exhorted "SALO KO JAN SE MAR DO"; that accused Qamaru Zama inflicted a spear injury on the left side of the Qayum's chest; that he (the witness) attempted to flee away but the accused persons encircled him; that accused Maqbool and Imtiaz inflicted spear blows on him; that the remaining accused persons who were holding lathies kept him encircled; that any one of them had inflicted a lathi blow from his back side; that his brother Ali Raza, getting an opportunity, ran away from the place of the occurrence; that Qayum had died on the spot; that he (witness) also fell down and became unconscious and later found himself on a cot in front of his door. The witness explained that spear blow given by given accused Maqbool caused wound in his thigh and spear wielded by accused Imtiaz could not cause the injury by its pointed side, as he bent down.
16. P.W,4 Sala Uddin deposed that occurrence took place one hour after the sun-rise; that he was at his tube-well which was hardly 100 yards away from the place of occurrence; that upon hearing the hue and cry, he reached the spot and saw that all the accused were forbidding the complainant and his brothers Mustkin and Abdul Qayum from cleaning the Nabdan but they did not pay heed to their objection; that the accused Qamaru-Zama, Maqbool and Imtiaz were armed with spears whereas the remaining accused were armed with lathies; that Qamru-Zama inflicted spear blow on Abdul Qayum who sustaining spear injury fell down; that Ali Raza succeeded in fleeing away but Mustkin could not make good his escape; that accused Maqbool and Imtiaz inflicted spears blows and any-one accused inflicted a lathi blow upon Mustkin.
17. P.W.5 Daud deposed on 26.11.80 that the occurrence took place about 11 months back about one hour after the sun-rise ; that he was going towards his field from his house; that he saw that a hot altercation was going on between the accused persons and Ali Raza, Mustkirm and Abdul Qayum; that Abdul Qayum was digging a pit whereas Ali Raza and Mustkim were cleaning the Nabdan; that the complainant and his brothers did not stop working even after the objection raised by the accused persons; that accused Qamru-Zama attacked upon Abdul Qayum by inflicting a spear blow upon him; that sustaining the spear wound, Abdul Qayum fell down and died; that accused Maqbool and Imtiaz inflicted spear blows upon Mustkin; that the remaining accused persons had taken Mustkin in a circle and were exhorting that he should not escape; that getting an opportunity Ali Raza escaped and fled away; that Mustkim sustained a lathi blow also; that thereafter all the accused persons ran away.
18. P.W. 1 Dr.S.G.P. Gupta (Radiologist) deposed that Mustkin sustained no fracture.
19. P.W.6 Dr. G.M. Lal proved Ext. Ka-3 (injury report of Mustkin) and Ex. Ka 4(Abdul Quayums post-mortem report). He deposed that injury No. 2 of Mustkin was a dislocation of bone hence it was previous hurt; that injury No. 3 of Mustkim was caused by sharp pointed weapon; that Abdul Qayum died as a result of ante mortem injury.
20. P.W. 7 Ram Deo, (Head Constable) proved the Chik report (Ex.Ka-5)and the copy of the G.D.(Ex.Ka-6)
21. P.W.8 Omkar Singh (Investigating Officer) proved the papers (Ext. Ka-9 to Ext.Ka-18) prepared by him during the investigation and spoke about the investigation conducted by him. There is nothing particular to comment about it.
22. C.W.1 Mahesh Prasad (constable Muharrir) proved Ext. C-1 as the copy of the G.D. dated 19.12.1979 prepared by him.
23. The Learned Counsel for the appellants vehemently argued that the appellant Qamru Zatna remained hospitalized from 18.12.79 to 25.12.79 at Primary Health Centre in village Birno, district Ghazipur. On its basis, he argued that Qamru Zama was falsely implicated. He, in support of the plea of alibi, drew our attention towards the statement of D.W.1 Shambhu Nath Chaubcy and D.W.2 Dr. Ashok Kumar Sinha.
24. D.W.1 Shambhu Nath Chaubey deposed that he was compounder at P.H.C. Birno in December 1979; that accused Qamru Zama remained admitted in the said hospital from 18.12.79 to 25.12.79; that entries in the indoor patient register were made by Dr. Ashok Kumar Sinha. In cross-examination he disclosed that there was no operation theatre at the P.H.C. nor there was any anesthetist; that the operation of the accused Qamru Zama was the first operation at P.H.C. Birno.
25. D.W.2 Dr. Ashok Kumar Sinha stated that he was the medical officer at P.H.C. Birno in December 1979; that accused Qamru Zama was suffering from hydrocele and he (P.W.2) conducted his hydrocele operation on 18.12.79; that Qamru Zama remained admitted in the hospital upto 25.12.79. In cross-examination, he revealed that he was simply an M.B.B.S. and had no special qualification of surgery except the house job done by him; that village Birno was situated at Ghazipur-Azamgarh road; that the distance of Azamgarh and Ghazipur from Birno was 30 Kms. and 18 Kms. respectively; that PHC Birno was an ordinary P.H.C; that it was not an upgraded P.H.C. that in the year 1979 he conducted no operation except that of Qamru Zama; that urine and blood were tested before his operation but their results were not noted on the bed head ticket; that he did not measure the blood pressure of the patient before his operation; that local anesthesia was applied by him; that he did not mention on bed head ticket that the patient was found fit for operation; that no test for blood sugar was conducted.
26. Thus, it is evident that there was no operation theatre at P.H.C. Birno nor any anaesthetist was posted there; that P.H.C. Birno was an ordinary P.H.C. and P.W. 2 Dr. Ashok Kumar Sinha was simply an MBBS doctor; that he did not measure the blood pressure nor tested the blood sugar; that the local anesthesia, which is a very skilled job, was applied by himself; that Ghazipur, where there was a district hospital having all the facilities and infrastructure of the operation, was only 18 Km from Birno.
27. It is strange that Qamru-Zama, instead of getting his Hydrocele operation done at Ghazipur chose an ordinary doctor posted at an ordinary P.H.C. where no facility for the operation was available. For no gain or advantage, he took a greater risk of his life.
28. It is further strange that D.W.2 who was an ordinary doctor (not a surgeon) at an ordinary P.H.C. took an unnecessary responsibility, for no gain, to conduct the hydrocele operation in adverse circumstances at P.H.C. where there was no facility for the said operation. Moreover, he himself applied even anesthesia before the operation. He could have referred this case to the district hospital, Ghazipur which was only 18 Km from Birno.
29. For these reasons, we find ourselves unable to agree with the defence pica of alibi raised by Qamru-Zama. It is a false and artificial defence raised by him.
30. The Learned Counsel for the appellants drew our attention to the evidence of P.W.3 Jhinnu Khan and argued that P.W.5 Daud's mother and the mother of P.W.2 AH Raza were real sisters and that a case Under Section 107/116 Cr.P.C. was jointly faced by P.W.5 Daud and P.W.2 Ali Raza. On its basis he argued that P.W.5 Daud was a partisan witness and should not be relied upon.
31. The evidence of a witness cannot be thrown out merely on the ground that the witness was related to the complainant or had faced the proceedings Under Section 107/116 Cr.P.C. jointly with the complainant unless his evidence suffers from any other infirmity which may warrant the rejection of his evidence. No such infirmity is pointed out. Hence we do not agree with the argument that Daud's evidence is liable to be disbelieved on the afore-mentioned ground.
32. The Learned Counsel for the appellants also argued that the whole of the family of the accused persons was implicated in the occurrence and this way the number of the accused persons was enhanced to twelve. He argued that according to prosecution evidence, no lathi blow was inflicted to the deceased and Ali Raza and only one lathi blow was inflicted to the injured Mustkin, but nine appellants with lathies were inducted just because they were related to the prime accused. He argued that the probability of false implication of at least eight of such nine appellants (who were allegedly armed with lathies) cannot be ruled out.
33. It is true that only one lathi blow was inflicted upon Mustkin and no lathi blow was inflicted upon Abdul Qayum (deceased)or Ali Raza. The person who inflicted single lathi blow upon Mustkin is not named by any witness. The lathi blow is only one whereas the number of appellants holding lathies is nine. The probability of the false implication of few of such appellants (who were allegedly armed with lathies), therefore, cannot be ruled out. The appellants who were allegedly armed with lathies but inflicted no lathi blow, therefore, deserve to get the benefit of doubt. Since it is not ascertainable as to who one of such nine appellants inflicted the lathi blow upon Mustkin, hence it is justified that all of the nine appellants, (who were allegedly armed with lathies), be given the benefit of doubt. The appellants Samkadar, Hsanain, Munsafi, Mohd.Yusuf, Gayasuddin, Sharif, Ramjan, Ayoob and Anwar would accordingly be given the benefit of doubt and would be acquitted of the charges framed against them.
34. Learned Counsel for the appellants then argued that the case falls within the purview of part I of Section 304 IPC and not within that of Section 302 I.P.C. for the reasons, firstly that Qamru-Zama did not repeat the spear blow, secondly that the occurrence was sudden and thirdly that it was provoked by the deceased and his brothers.
35. It is important to note that the appellant Qamru Zama inflicted a spear blow upon such a place of Abdul Qayum's chest which was just over his heart. Moreover, it was inflicted with such velocity that it caused not only a punctured wound on chest but also caused the laceration on the wall of the left atrium of the heart. The left side of pleura also sustained a laceration and the pierce was found even on pericardium under injury No. 1. In these circumstances, it has to be justifiably inferred that he caused the said injury with the intention of causing such injury as he knew to be likely to cause the death of Abdul Qayum. The bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause the death. Illustration (c) of Section 300 IPC also supports the view that the act falls Under Section 300 IPC. We are, therefore, of the view that the act of Qamru Zama falls within the definition of 'murder' under Section 300 I.P.C.
36. In order to ascertain whether the occurrence was sudden or not, we again have a glance over the incident.
37. On the date and time of occurrence, the complainant Ali Raza and his brother deceased Abdul Qayum and injured Mustkim were cleaning their Nabdan and digging a pit; the appellant Qamru Zama armed with a spear (deadly weapon) alongwith his companions, two more of whom were also armed with spears (deadly weapon), reached there and forbade them from cleaning the Nabdan; the complainant and his brothers did not stop the cleaning work of Nabdan; then appellant Qamru Zama inflicted the spear blow upon Abdul Qayum and the appellants Imtiaz and Maqbool inflicted spear blows on Mustkim. The aforesaid occurrence clearly shows that the act of the accused was premeditated, and not sudden. The holding of deadly weapons such as spears and their conduct both show that the appellants reached there with a definite intention. For claiming any exception, the burden heavily lies upon the accused. The appellants failed to discharge this burden. The incident, therefore, was not sudden and does not fall within Exception 4 of Section 300 I.P.C.
38. For taking the benefit of the sudden provocation under exception 1 of Section 300 I.P.C., it was incumbent upon the appellants to prove beyond doubt that the complainant or his brothers abused or used any other provocative words which were sufficient to provocate a reasonable person in ordinary circumstances. The appellants failed on this count also to prove that the complainant or his companions abused them or used any provocative words as afore-mentioned. We, therefore, hold that the case does not fall under exception 1 of Section 300 IPC.
39. The nine appellants who were allegedly armed with lathies are to be acquitted, being given the benefit of doubt, as we said above.
40. The participation of the accused appellants other than those of Qamru-Zama, Imtiaz and Maqbool is doubtful. May be that some of them participated. But their number and identity cannot be ascertained. Therefore, for Qamru-Zama, Imtiaz and Maqbool, Section 148 or 149 I.P.C. would not apply.
Instead, Section 34 I.P.C. would come into play. The application of Section 34 I.P.C. in a case like the present one is justified in view of Apex Court decision in the case of Amar Singh v. State of Haryana .
41. In view of the above, we partly allow the appeal this way:
(A) The conviction and sentences passed against the accused-appellants (1) Samkdar, (2) Hasnain, (3) Munsafi, (4)Mohd. Yusuf, (5) Gayasuddin, (6) Sharif, (7) Ramzan, (8) Ayoob and (9) Anwar are set aside. They are acquitted. They are already on bail.
(B) The conviction of the accused appellant Qamru-Zama would be under Sections 302, 325/34 and 324/34 I.P.C. with sentences of life imprisonment, three years' R.I. and two years' R.I. respectively. All the three sentences shall run concurrently.
(C) The conviction of the accused appellants Imtiaz and Maqbool would be under Sections 302/34, 325/34 and 324/34 I.P.C. with sentences of life imprisonment, three years' R.I. and two years' R.I. respectively. All the three sentences shall run concurrently.
42. The accused appellants Qamru-Zama, Imtiaz and Maqbool are on bail The C.J.M. Azamgarh shall cause them to be arrested and lodged in jail to serve out the sentences passed against them. The compliance shall be reported within two months.
43. Certify this judgment to the lower court immediately.