SHARMA, J. - (1.) THE appellants, five in number, were accused on the file of learned Additional Sessions Judge (Fast Track) Hindaun City in Sessions Case No. 4/2001 (83/98 ). Learned Judge vide judgment dated July 10, 2001 convicted and sentenced the appellants (for short `the accused') as under:- (1) Shahid, (2) Ayub and (3) Yunus: U/s. 148 IPC: Each to suffer six months simple imprisonment and fine of Rs. 100/-, in default to further suffer fifteen days simple imprisonment. U/s. 302 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment. (4) Yusuf and (5) Suleman: U/s. 148 IPC: Each to suffer six months simple imprisonment and fine of Rs. 100/-, in default to further suffer fifteen days simple imprisonment. U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment. Substantial sentences were directed to run concurrently.
(2.) THE prosecution case as unfolded during trial is that a written report was lodged by informant Mohd. Usman on September 2, 1998 with the police station Hindaun City to the effect that at 9 PM on the said day the informant and his brother Mohd. Hanif (now deceased) were coming back after closing their shop. When they reached near Hirnakush well, the accused who were armed with knives made assault on Mohd. Hanif. On hearing hues and cry Hakim Shah, Noor Mohd. and Mohd. Aziz came rushing and saw the incident. At the time of inflicting injuries the accused were saying sarcastically that not only the share in the house, they were giving entire house to Hanif. Mohd. Hanif, who was badly injured, removed to the hospital where he was declared dead. Police Station Hindaun City registered a case under sections 147, 148, 341 and 302 IPC and investigation commenced. Dead body of Mohd. Hanif was subjected to postmortem, other necessary memos were drawn, statements of witnesses under section 161 Cr. P. C. were recorded and the accused were arrested. After usual investigation the charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City, who framed charges under sections 148 and 302 alternatively 324/149 IPC. THE accused denied the charges and claimed to be tried. THE prosecution in support of its case examined as many as 15 witnesses. In the explanation under section 313 Cr. P. C. , the appellant claimed innocence and examined two witnesses in defence. On hearing final submissions the learned trial Judge convicted and sentenced the appellant as indicated herein above. This fact is not disputed that death of Mohd. Hanif was homicidal. Dr. Ram Lal Meena (Pw. 5), who performed autopsy on the dead body, initially examined the injuries of Mohd. Hanif on September 2, 1998, vide injury report (Ex. P-3) and after his death performed autopsy on the dead body on September 3, 1998. As per autopsy report (Ex. P-5) following antemortem injuries were sustained by the deceased:- " (1) Incised wound of 3cm x 8cm x bony deep on left parietal region of head clotted blood present in and around the wound. Hair of the head matted in the blood. No fracture of parietal bone. (2) Incised wound of 3cm x 7cm x bony deep on left cheek clotted blood deposited on cheek & face & neck region. (3) Incised wound of 2cm x 3cm x muscle deep on chin, clotted blood present. (4) Incised wound of 2. 5cm x 8cm x muscle deep on right side of chest 2cm & lateral to breast. (5) Incised wound of 2cm x 5cm x skin muscle deep on left side of chest 2cm above the Lt. breast & 6cm Lt. to middle of chest. (6) Superficial linear cut of 4cm in length left side of chest in lower part 5cm left to mid line of chest. (7) Incised wound of 2. 5cm x 5cm x bony deep on chest left side 3cm lateral to breast in line of breast. (8) Incised wound of 3cm x 1cm x internal viscera & deep on scapular region & probe parts into thoracic cavity on dissection find punctured. This wound site is on Rt. scapular region on back in line of eight breast due to ruptured of the lungs & pool of dark semi clotted blood filled in the thoracic cavity. (9) Incised wound of 2cm x 5cm x muscle bony deep on the mid axillary line of the chest in lower part right side adjacent to the abdominal region. (10) Incised wound of 3cm x 8cm x muscle bony deep on the right thigh just above the knee joint medially. In the opinion of Doctor the cause of death was due to injury to lungs right side leading to hemorrhagic shock The injuries were sufficient to cause death in the ordinary course of nature. Learned counsel for the accused canvassed that there are material contradictions and inconsistencies in the statements of alleged eye witnesses who were present at the place of incident by chance, therefore no reliance can be placed on their testimony. It is further contended that the FIR which was submitted at 9. 50 PM on September 2, 1998 reached to the court of Ilaqa Magistrate on September 3, 1998 at 11. 00 AM. The delay in sending the FIR has not been explained. It is further argued that according to FIR Hanif when brought to hospital died immediately, whereas as per record it is revealed that at 9. 30 PM Hanif was admitted, at 9. 45 PM his injuries were examined and at 9. 55 PM he died, thus there is doubt about registration of the FIR. It is also urged that as per prosecution case Hanif was brought to Hospital on scooter by Salim and Naim, but they were not examined, therefore adverse inference ought to have been drawn against the prosecution. Neither the blood stained clothes of Salim and Naim were recovered nor the scooter on which the deceased was taken to hospital got seized. Blood stains were not found on the place of incident and the explanation of investigating agency that blood stains might have washed due to flow of water cannot be relied upon. Since the motive behind the killing could not be established, the whole prosecution case becomes doubtful. Per contra learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and contended that the presence of eye witnesses at the scene of occurrence is established. It is highly natural that informant Usman was present when the incident occurred since he was coming with Mohd. Hanif after closing their shop. Testimony of Usman and other witnesses could not be shattered despite the fact that they were subjected to lengthy cross examination. The inconsistencies shown by the defence are minor and do not affect the foundation of the prosecution case. With the assistance of learned counsel we have carefully gone through the record.
(3.) COMING to the prosecution evidence we notice that the informant Mohd. Usman (Pw. 6) is the real brother of the deceased. In addition to the testimony of Usman the prosecution examined three more witnesses viz. Hakim (Pw. 1), Mohd. Khan (Pw. 3) and Mohd. Aziz (Pw. 4), who claim to have seen the incident. Mohd. Usman (Pw. 6) in his deposition stated that on the day of incident around 8-9 PM when he along with his elder brother Mohd. Hanif were returning after closing their clinic, they found five accused near Harnakush well. All the five who had knives in their hands started inflicting knife blows indiscriminately on the person of Hanif. They were telling that not only the share, they were giving Hanif full house. Hearing shrieks of informant Noor Mohd. , Hakim and Mohd Aziz came rushing and saw the incident. After some time Hakim took Hanif to Hospital on scooter. Usman was subjected to lengthy cross examination and attempt was made to establish that many dacoity cases were pending against Hanif, but Usman declined to have knowledge about the pendency of cases against Hanif. Usman categorically denied this suggestion that the deceased was ever admitted in hospital or was subjected to medical examination before his death. This suggestion was also negatived by the witness that Naim and Salim found Hanif lying in an injured condition in front of the shop of Tunda Patangwala and they took the Hanif on the scooter to hospital. Usman further deposed that although the accused wanted to attack both the brothers but he somehow saved himself, therefore the injuries could only be inflicted to Hanif. Hakim (Pw. 1) deposed that when he was standing near betel shop situated near Harnakush well, he heard shrieks of Usman. He immediately rushed to the place from where alarm was raised. He then saw accused Suleman and Yusuf holding Hanif and Yunus, Ayub and Shahid inflicting knife blows on the person of Hanif. Testimony of Hakim gets corroboration from the evidence of Mohd. Khan (Pw. 3) and Mohd. Aziz (Pw. 4 ). Contention of learned counsel for the accused is that nobody had seen the incident. In fact Hanif was found in an injured condition at some other place i. e. , the Chabutra of Tunda and two boys Salim and Naim took him to Hospital. Witnesses Usman, Hakim, Mohd. Khan and Mohd. Aziz are partisan witnesses and they told lie in the Trial Court. The statement of Usman that Hanif was made to lie on the floor of Hospital and was neither admitted to Hospital nor his injuries were examined prior to his death, in untrue on the face of the testimony of Dr. Ram Lal Meena, who deposed that Hanif was admitted to Hospital and his injuries were examined prior to his death. Learned counsel laid stress that Hanif was known `gunda' and has enmity with several persons who could kill him. We were taken through the statements of Deen Mohd. (Dw. 1) and Shaukat Ali (Dw. 2 ). Deen Mohd. was examined to show that there was no enmity between the deceased and the accused in regard to partition of the house. Shaukat Ali stated that deceased Hanif was lying on Chabutra of Tunda, thereafter Salim and Naim took him to the hospital on scooter. In his cross examination he stated that his wife and the wife of accused Yusuf both belong to Karauli and he used to address the wife of Yusuf as Badi (elder ). We have considered the submissions. Undoubtedly Usman and Dr. Ram Lal Meena contradict each other, so far as admission of Hanif in the Hospital and examination of his injuries prior to death is concerned, but this fact by itself is not sufficient to establish that Usman was not present at the time of occurrence. We cannot expect narration of minute details from a person whose brother was dying. So far as the contention of learned counsel for the accused in regard to delay in sending the FIR to the Ilaqa Magistrate is concerned we find it devoid of merit. The FIR was sent on the very next days as 11 AM when the court opened. We have closely scanned the testimony of these witnesses. ;