BALI, J. - (1.) WHETHER testimony of Rashid, the injured eye witness, should be believed, wholly or in part, is the sole but significant question involved in the present case. Before, however, we take into consideration the rival contentions of the learned counsel appearing for the parties, on the question framed above, it would be appropriate to give relevant facts culminating in filing of the present criminal appeal bearing No. 77/2002 and Revision No. 561/2002.
(2.) THE occurrence leading to death of Mazid, as per the prosecution version, had taken place on 22. 2. 1999 at 4 p. m. FIR with regard to the incident came to be lodged by Rashid (PW-3) on the same very day at 6. 45 p. m. Special report with regard to the incident reached the concerned Magistrate on 23. 2. 1999. While unfolding the prosecution version, Rashid who himself got injured in the same very incident leading to the death of Mazid, stated that on the day of occurrence at about 4 in the evening, he and his brother Mazid were coming back in a bus after attending hearing of a case. They were going to their house but when the bus reached Chhatarpur, Munshi, Deena, Sahabala, Jackom and Khursheed, belonging to their village, came in a tractor. They got the bus stopped and told the passengers to get down from the bus. Thereafter, they fired three rounds from the fire arms. Mazid received a gun shot injury in his eye. He and his brother were also asked to get down from the bus and were given beatings with Farsi. Police reached at the spot upon which these persons ran away. They had old enmity between each other. In its endeavour to bring home the guilt against the appellants and two others namely Juharu and Nihala who were tried along with the appellants but have since been acquitted, the prosecution brought on record medico legal report (Ex. P. 12) which would show that Mazid was medico legally examined at 9 a. m. on 22. 2. 1999. The doctor who conducted medical examination of Mazid found following injuries on his person: " 1. Incised wound with red clotted blood 10 x 6 cm on Rt. eye & Rt. side face. Rt. eye lost. 2. Incised wound 11 x 4 cm deep Lt. Parietal skull. 3. Incised wound 7 x 2 cm/deep with red clotted blood, Lt. side skull. 4.Incised wound 3 x 2 x 1 cm Lt. Forearm. 5. Three incised wound with red clotted blood, 5 x 2 cm, 6 x 2 cm and 4 x 2 cm. 6. Three incised wound Lt. Knee, Lt. Leg, 10 x 4 cm, 8 x 4 cm and 7 x 4 cm. 7. Incised wound 4 x 2 cm and 5 x 2 cm with red clotted blood. Rt. Leg. 8. Incised wound 10 x 8 cm traversely placed. 9. Incised wound 8 x 4 cm Rt. hand. 10 Abrasion on each finger 3 x 1/2 cm on each finger. " Rashid was medico legally examined on 22. 2. 1999 at 9. 30 p. m. Doctor found following seven injuries on his person: 1. Incised wound 6 x 1 cm deep with red clotted blood. 2. Incised wound two 2 x 1 cm V Finger Rt. hand 4 x 1 cm IV finger Rt. hand. 3. Incised wound 4 x 1 x 1/2 cm Rt. side face. 4. Incised wounds 7 x 1 cm / deep Rt. leg two with red clotted 4 x 1 cm blood. 5. Incised wound 4 x 1 x 1/2 cm Rt. ankle with red clotted blood. 6. Incised wound 9 x 4 cm post Lt. elbow 7. Two incised wounds 10 x 8 cm Lt. Thigh, 6 x 4 cm" Dr. Amar Singh Rathore, who was examined as PW-11, stated that on 22. 2. 1999 he was holding the post of Medical Jurist and was posted at Alwar. He had conducted medical examination of Rashid on that day and found on his person, injuries already mentioned above. He stated that all injuries sustained by him were caused by sharp edged weapon and were caused within a duration of 24 hours. Injuries No. 6 and 7 were grievous in nature whereas other injuries were simple. On the same day, he had medico-legally examined Mazid and found injuries on his person as already mentioned above. The doctor stated that all injuries sustained by Mazid had been caused by sharp edged weapon and were within duration of 24 hours. Injury No. 1 was declared to be grievous whereas with regard to rest of the injuries, the patient was referred for x-ray examination. Injuries sustained by Mazid were sufficient in the ordinary course of nature to cause death. The doctor further stated that on 23. 2. 1999, Mazid had died and therefore, he had conducted post mortem on the dead body of Mazid on the said day. Cause of death, in the opinion of the doctor, was comma and head injury which was sufficient in the ordinary course of nature to cause death. The doctor also deposed with regard to the injuries sustained by Sher Mohd. (PW-12) and Ali Mohd. (PW-4) but there is no need to make a mention of the injuries sustained by these witnesses at this stage as their testimony has been disbelieved by the learned Trial Judge.
(3.) ALI Mohd. and Sher Mohd. , we may, however, mention, were examined as PW-4 and PW-12 respectively. Rashid an important and star witness of the prosecution was examined as PW-3. While appearing as a witness, he while substantiating his version but for the first time, stated that Deena, Sahabala and Khursheed were armed with guns whereas rest of the accused were armed with Farsi. He also introduced accused other than named by him in the FIR and as mentioned above, Juharu and Nihala who were named by him after lodging the FIR have since been acquitted. We have been informed by the learned counsel appearing for the parties that he had introduced yet another person namely Jamshed who was tried separately but he too has since been acquitted. The witness also stated that other accused i. e. , other than Deena, Sahabala and Khursheed, were armed with Farsi and those armed with fire arms, had used the same whereas others who were armed with Farsi, they had caused injuries with their respective weapons. Ram Narayan and Daulat Ram Sharma, ASIs examined as PW-17 and PW-18 respectively deposed with regard to the steps that they had taken while investigating the case. When examined under section 313 Cr. P. C. the appellants while denying the incriminating material put to them, further stated that they had been falsely implicated due to enmity. They, however, examined no witness in defence. There is no need to mention further details of the prosecution case in view of the only but significant contention raised by the learned counsel for the appellants that Rashid, the only witness who has been believed, even though partly, by the Trial Court, should have been completely disbelieved and in view of the contradictory statements made by him and introducing innocent persons, no reliance could at all be placed upon his statement and therefore, all the accused should have been acquitted. Mr. Naqvi, learned counsel representing the complainant, who has filed Criminal Revision No. 561/2002, however contends that there was sufficient material available to believe the testimony of PW-3 Rashid as also that testimony of PWs 4 and 12, who too were injured witnesses could not be discarded. He further contends that in fact persons who have been acquitted should have also been convicted. ;