M. Wahajuddin, J.
1. Accused Farzand has been convicted by the then Sessions Judge, Moradabad, under Sections 302 and 307 read with Section 34, I.P.C., and has been sentenced to imprisonment for life and five years' R. I. respectively; both of these sentences to run concurrently. Accused Habib has been convicted under Sections 307 and 302 read with Section 34, I.P.C., and has been awarded the same sentences on the two counts. There was one more accused person, namely, Kabir Raza, facing the trial and he was acquitted. We may at the very outset observe that so far as Habib is concerned, he has died so his appeal has abated and we are now concerned with the appeal of only Farzand.
2. The prosecution case in brief is that in the Magh preceding the occurrence Husain Bux's she buffalo was stolen and he had lodged a report (Ext. Ka. 14) against Habib and some others under Section 380, I.P.C., on 14-2-1975 and Habib was convicted. Thereafter he and his relations bore ill-will towards Hussin Bux and his family members. It is, further maintained that on 27-6-1976 at about 9 A.M. Mulwa (P.W.3), brother of Kalwa (P.W.7) passed through the lane eating snacks and when he was passing in front of the door of Ghasi (P.W.11), Habib threw the snacks on the ground and Mulwa abused Habib and on that Habib slapped Mulwa. The situation was saved by Ghasi and Jamil Khan. Husain Bux and Peer Bux when informed of this matter did not take it seriously.
3. According to the prosecution, on the very day when Peer Bux (P.W.4) along with his brother Husain Bux, since deceased, and nephew Kaluwa (P.W.7) were returning back to their house from the field after irrigating the field, and reached near the mosque, Farzand and Habib accompanied by two others arrived and threat was extended to exterminate the victims. Peer Bux retraced towards the south and met Allah Bux (P.W.8), Faquira (P.W.9) and Ali Bahadur and accompanied by them he again came to the scene of incident Farzand and Kabir Raza were grappling with Hussain Bux, Habib alias Tulfi and Dhanthal were grappling with Kalua and when witnesses remonstrated Farzand stabbed Husain Bux with knife, while Habib stabbed Kalua with the knife and the victims fell down and the culprits escaped. A tempo was arranged and victims were taken to Police Station Bilari, where a report (Ext. Ka. 4) was lodged by Peer Bux (P.W.4) on the same day at 12.05 noon.
4. Head Constable Roshan Lal Sharma (P.W.14) prepared the check (Ext. Ka. 5) and registered a case. Both the injured were sent through Constable Mahesh Chandra Sharma to Sahaspur Bilari dispensary and their injuries were examined by Dr. Pramod Kumar (P.W.1). The injured were referred to District Hospital, Moradabad. Aforesaid constable Mahesh Chandra then proceeded to District Hospital, Moradabad. Husain Bux succumbed to his injuries in District Hospital on the same day at about 3 P.M. Information was sent to Police Station Kotwali, Moradabad. Sri Channoo Singh (P.W.10), the then Sub-Inspector, arrived at about 3.20 P.M. and conducted the inquest in presence of public witnesses including Laiq Ahmad (P.W.13). The inquest report and diagram etc. are on record.
5. The autopsy on the dead body of Husain Bux was held by Dr. Jameel Ahmad (P.W.2) on 28-6-1976.
6. The Station Officer, Police Station Bilari, Sri Mahak Singh (P.W.15), was not present when the report was lodged. He took up the investigation on 27-6-1976 when he returned to the Police Station. The witnesses were interrogated, except Husain Bux who was already dead. The site plan was prepared on spot inspection. Kaluwa injured was interrogated in District Hospital, Moradabad, on 30-7-1976. After completing the investigation the Investigating 'Officer submitted charge-sheet.
7. The accused persons pleaded not guilty to the charge. The trial proceeded. Farzand appellant and Habib since deceased, were both convicted, as aforesaid, and the judgment of the trial court is challenged in this appeal.
8. The prosecution has in all examined 15 witnesses in this case. Peer Bux (P.W.4), injured Kaluwa (P.W.7) and Allah Bux (P.W.8) are eye witnesses of the case, who have supported the prosecution. Peer Bux, Kaluwa and Malua (P.W.3) are witnesses on motive. Suraj Pal Singh, S.I. (P.W.12) is the scribe of the earlier report concerning the theft of the she buffalo. Dr. Pramod Kumar (P.W.1) examined the injuries of both the injured persons. Dr. Dinesh Mohan (P.W.5) has given evidence that when injured Husain Bux reached the District Hospital, Moradabad, he had already succumbed to his injuries. Dr. Prem Das, Radiologist, who took the x'ray of injured Kaluwa, is P.W.6. Dr. Jameel Ahmad (P. W.2) conducted the autopsy on the dead body of Husain Bux. P.W.15 Mahak Singh, Station Officer, is the Investigating Officer. One Fakker Mohammad (P. W.9) was also examined as a witness of fact, but turned hostile. Ghasi (P.W.ll) is also a witness on motive concerning the earlier incident involving Malua and Habib on the very day of the incident. The remaining witnesses are formal witnesses.
9. The defence has not led any evidence in this case.
10. Before dealing with the evidence of eye-witnesses, we may first lay down the .medical evidence in this case. The statement of Dr. Pramod Kumar and his injury reports Exts. Ka. 1, Ka. 2 and Ka. 3, go to show that he examined the injuries at the Primary Health Centre, Bilari, of Husain Bux on 27-6-76 at 12.45 P.M. and found the following injuries on his person:
1. Incised wound, bleeding, 6 cm X 1 cm X bone deep over the scalp 3 cm above ante to left ear pinna.
2. Punctured wound, 4.5 cm X 1,5 cm depth not measured (No probing). Bleeding present on the back of chest of right side 12 cm below the root of neck.
Injury No. 1 was simple. Injury No. 2 was kept under observation and Husain Bux was referred to District Hospital, Moradabad. According to him the injuries of Husain Bux were fresh at the time of medical examination. He also examined the injuries of Kaluwa injured witness (P.W.7) on the same day at 1.25 P.M. and found the following injury on his person:
1. Punctured wound 3 cm X 1 cm, depth not measured, air coming out with each respiration in front of Rt. side of chest 6 cm inward and upward to rt. nipple. Bleeding present.
The injury was kept under observation and he was also referred to the District Hospital, Moradabad. According to him the injuries of both the injured were possibly caused at 11 A.M. on the very date. As injuries of Kaluwa could be dangerous to life, a supplementary report (Ext. Ka. 3) was also given. In cross-examination he admitted that the injuries which are up to 6 to 8 hours old are also termed as fresh. From the x-ray he found that there was evidence of haemopneumo thorax right lung. The evidence of Dr. Jameel coupled with his post-mortem report would show as follows:
1. Stiched wound with 3 stitches on the left side of head and 5 cm long, 3 cm above the left ear. The wound was dressed.
2. A stitched wound with four stitches 4 cm long on the back of chest right side 3 cm away from the middle line, 7 cm below the root of neck posterior. The wound was dressed.
On internal examination doctor found clotted blood under scalp injuries, 5th thorax vertebra was cut at the junction of ribs with vertebra. Stomach was empty. According to the doctor the death of Husain Bux was due to shock and haemorrhage as a result of injuries to chest and back. He has also stated that the death of the deceased was possible on 27-6-1976 at about noon.
11. Being injured witness Kaluwa (P.W.7) , is the most important witness of this incident. The gist of Kaluwa's evidence is that on the date of the incident, he, his father Husain Bux and his uncle Peer Bux had gone to their fields for irrigating the same and they were all returning back from there to their houses at about 11 A.M., when on their way near the mosque the culprits accosted the victims and threatened to teach a lesson for sending Habib to jail and Peer Bux getting a little opportunity rushed towards the south-but again returned with Ali Bahadur, Allah Bux and Faquira who got attracted on his alarm, to the scene of incident. According to him Farzand stabbed his father Husain Bux, while Habib stabbed him with knife. He and his father fell down while the two accused and others ran together towards the North. He has further given evidence on motive as well as the subsequent details concerning the taking of the injured to Bilari Police Station, lodging of the report by Peer Bux (P.W.4), taking of the victims to Bilari Primary Health Centre by the Police Constable and then proceeding to Moradabad District Hospital, where their case was referred. According to him, the victim Husain Bux succumbed to the injuries when he reached the District Hospital Moradabad and was not alive then. His evidence would also reveal that Husain Bux became unconscious. He has given evidence concerning his own treatment.
12. Peer Bux (P.W.4), who is the brother of Hussain Bux and maker of the first information report, has again fully substantiated the prosecution version to the very effect. He has given complete details of the incident. He stated that getting opportunity he fled towards the south raising alarm and when the other three aforesaid persons got attracted, he again returned to the place of incident and saw the incident. He stated that Farzand stabbed Husain Bux twice with knife, while Habib stabbed Kaluwa once and both the victims fell down. According to him, a tempo was arranged and they proceeded to Police Station, where the first information report was lodged. The victims were taken for medical aid to Primary Health Centre, Bilari, and then to Moradabad District Hospital as a referred case where Hussain Bux expired. He has also given evidence on motive. He was cross-examined at length as to how he retreated and then again arrived and he has given a very satisfactory account of himself on that point also.
12A. On motive there is evidence of Mulua (P. W.3) concerning the earlier incident of that day involving him and quarrel with him, and another witness is Ghasi (P.W.ll), who has supported Mulwa. Regarding the matter of involvement of Habib in theft case, apart from such evidence on the point the check lodged against Habib and others in that case has also been proved.
13. It would appear that there happened to be one more witness of fact, namely, Allah Bux (P.W.8), and the trial court has relied upon his evidence also. We, however, find that before the Sessions Judge he stated that he proceeded to Dhakia to make payment to one Mehdi, who supplies him milk, but Mehdi was not at his house and he was returning back from there when he saw the incident near the mosque. He did not give this version to the Investigating Officer. On the contrary he stated that on that day at about 1 P.M. he had gone to participate in the funeral of Chhotey and was returning back from there when the incident took place. When the very account given by him for his presence is contradictory, giving one version before the Sessions Judge and totally different version before the Investigating officer, it will not be safe to rely upon the evidence of that witness.
14. It is urged that both the remaining witnesses are partisan witnesses in the sense that Kaluwa is the son of Husain Bux while Peer Bux is the brother of Husain Bux and there is no independent witness, hence arty conviction would not be safe. We have given our anxious consideration to the arguments advanced on this aspect. It is noteworthy that Kaluwa is an injured witness. His presence at the scene and time of incident cannot be doubted. He had received a serious injury, which was dangerous to his life. This is borne out by medical evidence. His father has received two stab wounds and was in an unconscious condition and even ultimately expired on that day. When that is the position, it is inconceivable and against human nature that Kaluwa will shield the real culprits and implicate Farzand appellant besides Habib, who is dead, in their place.
15. The learned Counsel for the appellant urged that perhaps the assailants went unnoticed and unidentified hence Farzand and Habib had been implicated due to enmity. It was even argued that the incident may be of night incident. This argument again cannot hold water and has no force. The injuries were such that in the interest of the life of the victims and to save their lives they would be rushed to a doctor immediately and there will be no delay. It is noteworthy that the medical examination of Husain Bux at the Primary Health Centre took place at 12.45 noon and that of Kaluwa took place at 1.25 P.M. No sensible person would defer the treatment and rushing the victims for medical aid for any long interval, when the nature of the injuries of the two victims are such as would have resulted in death and one actually died on the very day when being taken to the District Hospital, Moradabad. It is noteworthy that Dr. Pramod Kumar (P.W.1) in his statement has, apart from deposing that the injuries of the two injured were fresh, also deposed that the injuries are possible at about 11 A.M. on that day. True that in cross-examination it was elicited from the doctor that fresh injury means an injury up to the duration of 6 to 8 hours. But that would not mean that his positive statement that the injuries could have possibly resulted at 11 A.M. is demolished. It is also noteworthy that both the victims were bleeding when taken to the Health Centre. When that is the position, the direct evidence concerning the time of incident cannot be suspected, nor the Court can act upon conjectures that injuries could have been caused in the night hours. So that argument of the learned Counsel for the appellant again has no force.
16. It was next urged that in the first information report giving of a single blow and not two knife blows to Husain Bux is mentioned. This is actually not the position, and the actual recital is:
Farzand Ne Mere Bhai Va Habib Urf Talfi Ne Bhateeja Ko Chaku Bhonk Diye.
The use of expression 'Bhonk Diye' instead of 'Bhonk Diya' is significant and it cannot be said that in the first information report the case was that Husain Bux was given a single knife blow and there is any later improvement. The direct evidence is consistent that actually two knife blows were given to Husain Bux by Farzand, while Kaluwa was given one knife blow by Habib, since deceased.
17. The direct evidence in this case is fully corroborated by the medical evidence as well as the first information report lodged by Peer Bux which is a prompt report. The incident is of 11 A.M. and the report was lodged the same day at 12.05 noon, the distance of the Police Station from the spot being three miles. All the broad facts concerning the incident are narrated in the first information report, which constitutes a strong piece of corroborative evidence.
18. The medical evidence again supports the prosecution on the point of time of incident, the nature of weapon used in inflicting the injuries and the number of injuries caused.
19. It was argued that some other witnesses could have been produced. It is well settled that in the matter of appreciation of evidence it is not the number but the quality of evidence and its intrinsic worth which counts. It is not an uncommon tendency to avoid involving oneself in any village controversy or feud by giving evidence for one side and people are reluctant to come forward to give evidence. It would be found that Fakira, who supported the prosecution in his statement under Section 161, Cr. P.C. made a somersault in his statement before the court of session. Such tendency is not uncommon. Each case has to depend upon its own individual facts and circumstances. In the present case there is an injured witness and in the circumstances of the present case it is inconceivable that he would shield the real culprits and implicate innocent ones. There are two injured persons. Both having received knife injuries, so there is every likelihood of the stab wounds having been caused by two individual culprits as maintained by the prosecution.
20. The evidence on motive is also there, Ext. Ka. 14 is the report dt. 14-2-1975 lodged by Husain Bux under Section 380, I.P.C., against Habib and some others. The evidence is that there was also his conviction in that case. Then there is also further evidence concerning exchange of words and quarrel between Mulua and Habib a little earlier on the very day of the incident. So evidence on motive is also there.
21. After considering the entire evidence on record and the circumstances of the case and fully considering the arguments urged on behalf of the defence, we find that the prosecution has succeeded in proving beyond reasonable doubt that it was Farzand who caused stab wounds by knife to Husain Bux and it was Habib who caused stab injury to Kaluwa. From the medical evidence showing the nature of injuries etc., it is proved beyond reasonable doubt that the injuries of Husain Bux were sufficient in the ordinary course of nature to cause death.
22. It was urged that the case is one of sudden and grave provocation and unpremeditated infliction of injuries. This argument again does not appear to have any force. From the evidence it is proved that the culprits arrived together, the two persons convicted were armed with knives, the victims were unarmed, threat was extended and then they were attacked and when that is the position, none of the exceptions to Section 300, I.P.C, would be attracted and it cannot be a case of culpable homicide not amounting to murder. It also cannot be urged that appellant Farzand later did not take advantage. He was not content with inflicting one knife blow upon Husain Bux, but even a second knife blow was inflicted and the injuries were caused on the vital part of the body. His intention was to kill Husain Bux and he has been rightly convicted under Section 302, I.P.C., and under that section lesser sentence has already been awarded. As regards his further conviction under Section 307/34, I.P.C., for injury caused to Kalua, we find that this is a clear case where a common intention between the two culprits is established. They came armed with knife, they attacked the victims with knife, they ran away together, threat was extended before the attack, fatal injuries caused to one of the victims, i.e., Husain Bux, and it is, therefore, certain that the common intention of both was to kill Husain Bux as well as Kaluwa. The injury of Kaluwa is on vital part. It was dangerous to his life as proved by the medical evidence. It is just luck that he has survived. In these circumstances, Farzand has rightly been convicted on the other count, i.e., under Section 307/34, I.P.C., also for the injury caused to Kaluwa. The injury is such that it can be safely held that it was caused with the intention, knowledge and in the circumstances that had Kaluwa died, culprits would have been guilty of murder, so the conviction under Section 307/34 I.P.C., is right and justified and the sentence of five years' R.I. on that count is again not severe and does not call for any interference.
23. In the result, the appeal of Habib has already abated and the appeal of Farzand Ali is dismissed and Farzand's conviction under Sections 302 and 307/34 I.P.C., and the sentences awarded by the Sessions Judge on the two counts are maintained. Farzand Ali is on bail. He shall surrender and shall be taken into custody to serve out the sentences awarded to him. Sentences are to run concurrently.