C. M. LODHA, C. J. - (1.) BOTH the above appeals have been filed by the convict Abdul Salam from the Judgment by the Sessions Judge, Partapgarh dated January 22, 1974 by which the learned Sessions Judge convicted the appellant Abdul Salam under section 302, Indian Penal Code, for causing the death of Umar and sentences him to imprisonment for life. The appellant was also convicted under section 307, Indian Penal Code, for attempting to murder P. W. 12 Aziz Mohammad and was sentenced to seven years' rigorous imprisonment. In addition to the aforesaid offences the appellant was convicted under section 452, Indian Penal Code and sentenced to two years' rigorous imprisonment and a fine of Rs. 50/-: in default of payment of fine to undergo one month's further rigorous imprisonment. Aggrieved by the convictions and sentences awarded to him the appellant has filed these appeals.
(2.) WE may state, here, that along with the appellant three more accused were put up for trial viz. his brother Abdul Rehman, mother Mst. Jetun, and father Habib, but they have been acquitted and the State has not filed appeal from their acquittal. Briefly stated, the prosecution case is that on June 23, 1972, at 6 p. m. , there was exchange of hot words between Mst. Batul (P. W. 15), wife of Aziz Mohammad (PW 12) and Mst. Jetun, mother of the appellant on the question of playing radio. The accused-appellant is a neighbour of Aziz Mohammad. At the time of occurrence Aziz Mohammad, his two sons-Umar (deceased) and Manzoor (P. W. 16) were also in the house, besides Aziz Mohammad and Batul. On hearing the altercation between the accused, and the complainant party, P. W. 1 Habib and P. W. 2 Gulam Rasool, who were neighbours, went to the house of Aziz Mohammad to intervene and pacify the parties, and after they had gone away, Aziz Mohammad sat down to take his food. At that time Habib and Mst. Jetun are alleged to have cried out that Aziz Mohammad and the members of his family be finished. Accused-appellant Abdul Salam and Abdul Rehman, thereupon, rushed to the house of Aziz Mohammad and Abdul Salam inflicted a blow with a knife to Aziz Mohammad. Umar, Manzoor, Habib and Gulam Rasool ran to rescue Aziz Mohammad, but Abdul Salam and Abdul Rehaman inflicted blows with knife to Umar and Manzoor, and then fled away. All the three injured viz. Aziz Mohammad, Umar and Manzoor were taken to the hospital. Umar died the same day. This is the story contained in the first information report, which was lodged by Habib, son of Noor Mohammad, at police station, Chittorgarh the same day at 8 p. m. We consider it necessary to mention this fact as the story developed during the trial is that Abdul Salam alone inflicted injuries to all the three injured persons. On post-mortem examination the following injuries were found on the dead body of Umar : - "1. Stab wound Lt. side chest 1" inferior to nipple 3"x2"x6" horizontally. 2. Incised wound dorsum of Lt. wrist and fore-arm 3"xl 1/2"x 1/3" on the radial side. 3. Abrasion left shoulder front l 1/2"x 1/3" 4. Abrasion on the dorsum of the left hand parallel to 3rd metacarpal in distal half 2"x1/3" The following injuries were found on the person of Aziz Mohammad and Manzoor : Aziz Mohammad : "stab wound - 3"x1/2"xl" on the left side omentum abdomen laterally comint 2" above left anterior or superior iliac spine out of the wound. " Manzoor : "stab wound - 2"x1/2"x3" penetrating in the abdomen. Left side flank under the last rib on the postero lateral aspect. " That Umar died of injury No. 1, found on his body, is a matter beyond dispute and has not been challenged before us. There is also not the slightest doubt that this injury was caused by a sharp weapon, such as a knife.
(3.) SO far as the stab wound caused to P. W. 12 Aziz Mohammad is concerned, we have the consistent version of as many as six witnesses, viz. PW 1 Habib. P. W. 2 Gulam Rasool, PW 9 Baby, PW 12 Aziz Mohammad (injured), PW 15 Batul and PW 16 Manzoor that it was Abdul Salam, who had inflicted the stab wound with a knife to Aziz Mohammad. This fact is contained in the first information report also, which was lodged very promptly by Habib (P W. l ). In our opinion, the prosecution has proved to the hilt that it was Abdul Salam, who had caused injury to Aziz Mohammad. It is also clear that the injury was inflicted on a vital part of the body viz, abdomen on the left side omentum abdomen above left anterior or superior iliac spine. The injury was consequently dangerous to life and if the injured had died, the accused would have been guilty of an offence under section 302, Indian Penal Code. There is thus no escape from the conclusion that Abdul Salam committed an offence under section 307, Indian Penal Code, by causing stab wound with a knife to Aziz Mohammad and he has rightly been convicted of the said offence. The sentence of seven years' rigorous imprisonment awarded to him, under sec. 302, Indian Penal Code, is just and proper and does not call for interference. Learned counsel for the appellant has, however, strenuously urged that the prosecution has failed to establish that it was Abdul Salam, who had caused injuries to the deceased Umar. It is submitted that in the first information report, both Abdul Salam and Abdul Rehman are alleged to have caused stab injuries with knife to Umar. All the six eye-witnesses viz. PW 1 Habib, PW 2 Gulam Rasool, PW 15 Batul, PW 9 Baby, PW 12 Aziz Mohammad and PW 16 Manzoor in the course of their interrogation by the police have also stated to the same effect. But during the trial all these six witnesses completely absolved Abdul Rehman and stated that it was Abdul Salam alone, who had caused injuries to Umar as well as Manzoor. It is argued that these witnesses have changed their version and have picked up Abdul Salam only in order to bring their evidence in line with the medical evidence, which disclosed that there was only one stab wound in the chest of Umar. We have given our earnest consideration to this aspect of the case and have come to the conclusion that it will not be safe to act upon the evidence of the eye-witnesses, unless there is some check available on the record to lend assurance to our minds that what these witnesses have stated, at the trial, is the true and the correct version. Unfortunately, for the prosecution, we have not been able to lay our hands on any such check. The learned Public Prosecutor too expressed his inability to bring to our notice any other piece of evidence which may go to show that what the witnesses have stated at the trial is true, and what is stated in the first information report and in the statements of these witnesses before the police is untrue. In the first information report, which is the earliest version of the prosecution, it has been stated that Abdul Salam and Abdul Rahman had both caused injuries to Umar and Manzoor. In this state of evidence, we find it unsafe to accept all that these witnesses have stated at the trial, during which they completely absolved Abdul Rehman. Thus, these witnesses have forfeited their right to be considered as wholly reliable. It appears that they have adopted the method of 'pick and choose' when they found that the version given by them to the police would not fit in with the medical evidence. In this view of the matter,we do not consider it safe to hold accused the Abdul Salam liable for the injuries caused to Umar. May be, that initially, the prosecution wanted to implicate the whole family of the accused, and there is no manner of doubt that this is a case of over-implication. But a serious doubt is created, in our minds, as to who in fact caused injuries to Umar-Abdul Salam or Abdul Rehman, and the benefit of doubt must go to the accused. The same is the state of affairs with respect to the injury caused to Manzoor, inasmuch as the version contained in the first information report as well as in the police statements of all these eye-witnesses is that Abdul Salam and Abdul Rehman - both had caused injuries to Manzoor. But in the trial court they said that Abdul Salam alone had caused injuries to Manzoor. It appears that the prosecution witnesses tried to ride two horses, and, therefore, the prosecution must suffer. However, as we have already pointed out in the earlier part of our judgment, so far as injuries to Aziz Mohammad is concerned, the version is consistent throughout and we are, therefore, on a surer ground that it was Abdul Salam, who had caused injuries to Aziz Mohammad. ;