- (1.) THIS is an appeal by Anarkhan and five others against their conviction under sec. 148 and 302 read with sec. 142 I. P. C. by the Sessions Judge of Partapgarh.
(2.) THE case relates to an incident which took place on the 7th of September, 1952, in village Sadulkhera some time before mid-day THE report of the incident was sent to the chowki of Chakardai from where it was sent to the Thana. In this report it was said that Amir Mohamad was murdered by these six accused while he was ploughing his field. THE six accused came there armed with lathis and axes. Amir Mohmmad ran away on being attacked, but was pursued. Meer Mohmmad and Moinuddin were present when the incident took place. The remarkable fact about this report is that it does not mention why Amir Mohmmad was murdered in this manner. There is also no mention that Amir Mohd. was done to death in Sherzamankhan's beer where, it, is said, he ran away. There is also no mention in this report that the deceased had made a dying declaration to Shaukat Khan who was making this report shortly after his death. We mention these facts because the story as given in the court has been improved by the addition of these matters. The evidence in court is that Amir Mohammad had gone to his field along with Moinudin with food for Meer Mohammad who was grazing cattle there. After Meer Mohammad had taken his food, he and his uncle Amir Mohammad started ploughing the field, while Moinuddin sat down at a distance from the field waiting for Amir Mohammad to finish the ploughing so that Moinuddin might take him to Chikarda for purposes of some purchase. While this ploughing was going on, these accused are said to have come out of their Jawar field which is close to the field in which ploughing was going on. Sardar Mohammad Khan accused attacked the deceased with a lathi from behind. As the deceased turned round Anarkhan accused attacked him from the front with an axe, and caused him an injury on the face. Thereupon, it is said that the deceased ran to the beer of Sher Zaman Khan, which is at a distance of about 300 paundas from this field. There, it is said, Sardar Mohammad Khan again hit on the leg of the deceased who fell down, and thereupon he was done to death. Moinuddin and Meer Mohammad had also gone behind the accused who were chasing the deceased. The accused turned on both these persons after finishing the deceased, and thereupon they ran away to the village and gave information to Shaukat Khan. According to these witnesses, there were seven persons who had taken part in this incident, namely six accused and one Nasir Khan. But when the report came to be made, the name of Nasir Khan was not mentioned in it. Shaukat Khan on receipt of this information came to the beer of Sher-zaman Khan, and saw the deceased. It is said that the deceased was till then alive. Some water was given to him, and on enquiry he told Shaukat Khan and others that these seven persons had attacked him. There after he died. The accused have all denied their guilt. They have alleged all kinds of enmity between themselves and the prosecution witnesses but we do not think it necessary to deal with all the reasons that they have given for enmity between themselves, and the prosecution witnesses. It may however, be mentioned that the accused and the deceased and the witnesses are all related to one another,and this fact will have to be borne in mind when judging the evidence of the witnesses for the prosecution. The evidence in this case is of two kinds. There is first the so called dying decla-ration made by the deceased before Shaukat Khan and Gulbaz Khan. Then there is the evidence of the two witnesses Moinuddin and Meer Mohammad. Before, however, we deal with the evidence we should like to consider whether there was any immediate motive or reason for the accused to make this attack suddenly on that day. The eyewitnesses do not say that the accused said anything when they made the attack. The evidence is that they just came there and started attacking Amir Mohammad without saying as to why they were doing so, or what Amir Mohammad had done to deserve the attack. In the first report there was no mention of any reason for such an attack at that time. Therefore, when evidence came to be given, reasons were searched for this murder. The first reason that was given in evidence was some kind of vague trouble over the boundary of the fields of the accused and the deceased. The statement of Ali Sherkhan in this connection was that there had been some trouble between the accused and the deceased about the boundary of their fields about five years before the incident. That matter had been compromised at the instance of Ali Sherkhan, but Ali Sherkhan went on to say that the patwari was a relation of the accused; and did not show the khasra to the deceased, and so the trouble over the 'mand' went on Gulbaz Khan also says that the accused and the deceased used to quarrel with each other regarding some fields and lands and their relations were not cordial. At the best, all that this evidence shows is that the accused and the deceased might not have been very happy with one another but that does not show that there was any such enmity between them that any party would take into its head to commit murder. The only other circumstance which has been pointed out is a report made in June, 1951, fifteen months before the present incident, by the brother of one of the accused against Ali Sher Khan and Amir Mohammad. That was a report under sec. 307 I. P. C. But there is no evidence that any case was rosecuted by the Police or any complaint was made, following up this report. There after, there is no evidence of any incident between the accused and the deceased. In these circumstances, it seems to us rather strange that the accused should suddenly decide this morning to go and attack Amirmohammad without any rhyme or reason and do so with out even telling him why they were committing his murder. The relations between the deceased and the accused might not have been very happy, but there is nothing to show that the relations were so strained as to lead to murder of members of one party by the other. This circumstance will have to be borne in mind when we come to judge the evidence of the witnesses for the prosecution. Before we take the evidence of the eye witnesses, we should like to consider the evidence regarding the dying declaration. The witness to this are Shaukat Khan and Gulbaz Khan Shaukat Khan is the own brother of the deceased. He is, of course, related to the accused also, but the deceased was certainly the nearer relation. Gulbaz Khan is equally related to both sides, Besides this, his sister is said to be married to one of the accused, but that accused has said that there is bad blood between him and Gulbaz Khan on account of this very woman. Anyhow what is the evidence of these witnesses about this dying declaration. They say that they came to the beer of Sherzman Khan and tried to give water to the deceased by raising him, and he then to told them the names of the assailants and soon after he died. Thus it appears from their statement that the deceased was only just conscious enough to give them the names of the seven persons who had attacked him. We are of opinion that it is not possible to rely on such a dying declaration. It is always easy to put such a dying declaration in to the mouth of a dead man. If it was really a fact that the deceased had made this dying declaration, it would have been much better if a mention of it had been made in the first report which was sent by Shaukat Khan to the Thana only a short time afterwards. Further we have the evidence of the Doctor to the effect that the deceased must have died with in half an hour of receiving the injury. We have further the Statement of these witnesses that they arrived on the scene more than an hour after the mar peet was over. It is true that the mere opinion of a Doctor may not outweigh the evidence of the eye witnesses. But in this particular case when the witnesses are also agreed that the deceased died immediately after giving the names of the assailants to them, we think that we can attach due weight to the evidence of the Doctor. Further, the nature of the injuries was such that even if the deceased did not expire with in half an hour it is quite possible that he must have become unconscious and in capable of making any statement The probability in this case, in our opinion, is more against the deceased being able to make a statement that he was able to do so In these circumstances we are not repared to place any reliance on this dying declaration. Then we come to the evidence of the to witnesses. We shall take the statement of Moinuddin first. This man had ordinarily no business to be present where the incident took Place. He had therefore to explain why he was present at that spot. The explanation which he first gave was that Amir Mohammad had come to call him in order that he might help Amir Mohammad in ploughing the filed, and that was why he had gone with Amir Mohammad to that field. Later, however the explanation that the gave was quite different. He said that he wanted to make purchases of grain at Chikarda and wanted the help of Amir Mohammad in that He consequently went to the house of Amir Mohammad and asked for his help. Amir Mohammad told him that he had to plough a certain field very urgently, and that he would accompany Moinuddin after the ploughing was over. Consequently he went with Amir Mohammad to that field, and waited till the ploughing was over. Now there can be only one reason why this man had gone to that field that day. The very fact that he prevaricated about the cause of going to that field shaws that he was rot present on the field when the incident is said to have taken place. We cannot understand why he should have prevaricated in this manner if it is true that he was present at that field, and had gone there for some reason. It was argued by the learned Government Advocate that the conduct on the part of this witness should not lead us to disbelieve his entire Statement. It may howe\er, be added that this falsehood cuts at the very basis of his presence on that spot. Either the man had gone there to help Amir Mohammad in ploughing the field, or he had gone there in order to wait for Amir Mohammad to finish ploughing so that he night take Amir Mohammad to Chikarda. He could not have gone there for both purposes. When he was confronted with his earlier state. ment, he had no compunction in saying that that statement was incorrect, and that he had never stated like that. In these circumstances when we are not even told what is the reason for this witness' presence at that spot, we cannot possibly believe the rest of the statement which rests on our believing that he was present when the incident took place. Besides this contradiction about his presence on the spot a perusal of the statement of this witness shows that he has no regard for truth. He has) contradicted his earlier statements of numerous occasions and has the brazenness to say that those earlier statements were never made by him and that he could not say how those who were taking down those statement managed to take down those earlier statements. Any how, he seated previously that as soon as the accused Sardar Mohammad Khan arrived, he first gave a lathi blow on the head of the deceased. This was followed by an axe blow by Anar Khan on the head of the deceased In the Sessions Court, however he stated that the first blow by Sardar Mohammad Khan was at the back of the deceased and the second blow by Anarkhan was on the face. When confronted with his earlier statement he said as usual that he had never made it. The reason for this change in this particular case is also clear. If it was a fact that the deceased was hit twice on the head, once by a lathi and another time with the axe the chances of his running 300 paundas to the beer were almost next to nothing This witness therefore changed his statement in order to make it possible for the deceased to run that distance. Further the medical evidence shows that there was no injury whatsover caused by a lathi on the head of the deceased, and that also made it absolutely imperative that this witness should change his statement. It has been said that Moinu-ddin's name is mentioned in the first report. That is undoubtedly so. But because a man's name finds mention in the first report, it does' not follow that we are bound to accept his testimony even though we are not satisfied about his presence on the spot, and his evidence is otherwise unreliable.
(3.) THE defence suggests that there is enmity between the accused and Ali Sher Khan, and this witness is a relation of Ali Sher Khan and that is why his name was mentioned in the first report, and he came forward to give this evidence. THEy may be some explanation why this witness was forthcoming, hut, in any case, we are not satisfied that this witness was present when the incident took place. We are also not satisfied that this witness is reliable, and can be depended upon, considering the nature of his evidence and the contradictions he has made. This leaves us with the statement of Meer Mohammad who is a lad of about 14 years of age. If may be that this body was grazing cattle in this field on that morning though it was much more likely, as contended for on behalf of the defence that he was in his father's field which is at a distance of about 600 paundas from that spot. But we cannot forget, that he is a very near relation of the deceased. Being a body he could have been easily coached to make the statement. It is also remarkable that though it is said that the fight began at this field no foot marks of any king were found at this spot even though the incident took place on that part of the field which is said to have been ploughed up. No blood was found any where on this field. There is no evidence of any blood being found on the way from this field to the Beer, though it is said that the deceased ran all this distance with a bleeding injury caused by an axe on his face. We realize that it is not impossible that blood might not have been found on that field or on the why; but the absence of blood and foot marks certainly makes it improbable that the incident took place in this field at all. It tooks much more probable that the whole incident, whatever it was, took place on the Bear. This boy also has gone back on some of his earlier statement and his explanation is also the same namely that he had not made the earlier statements at all, and he could not say how those who took down his statements managed to write them. In these circumstances, we feel it unsafe to rely on the testimony of this boy alone. Further it is remarkable that the boy says that he ran home to his father, and informed him of the incident. Though his father said in the Sessions Court that he was at home he said on an earlier occasion that he was at his field when the boy came to him. We also can not fail to remember the fact that there was no immediate reason for such an attack being made by the accused on the deceased. It is in such circumstances that we are asked to rely on the testimony of this young boy alone. We feel that it would be unsafe to convict the accused in these circumstances on the testimony of this boy. We would not say that the boy is necessarily telling lies: but we feel that it would not be proper for us to convict the accused on his solitary testimony in the circumstances. We must therefore give the benefit of the doubt that persists in our mind, to the accused. We, therefore, allow the appeal, and giving the benefit of the doubt to the accused set aside their conviction. They will be released at once if not required in any other connection. . ;