Mufti Baha-Ud-din Farooqi, J.
1. The appellants, Ramzan Ganai and his two sons Bashir Ganai and Khazir Ganai, have been convicted by the learned Sessions Judge, Anantnag, under Section 302, R. P. C. and sentenced each to life imprisonment. By this appeal, the appellants challenge their conviction as also the sentence imposed on them. The learned Sessions Judge too has made a reference for confirmation of the sentence of life imprisonment. This judgment will govern the disposal of both the appeal and the reference.
2. Briefly stated, the prosecution story is as follows: On 14-9-1971, late in the evening, Abdullah Ganai prosecution witness, was carrying food for his uncle. Hassan Ganai, who was keeping watch over his orchard in village Chatta Wattan, Tehsil Sho-pian. Enroute, when he reached near the orchard of the appellants, they intercepted him and dragged him into their orchard and there gave him a beating. Abdullah Ganai raised hue and cry which attracted his father, Qadir Ganai, deceased, and his uncle, Hassan Ganai, to the spot with a view to rescuing him from the appellants. The appellants immediately caught hold of the deceased and started beating him mercilessly. Ramzan Ganai dealt a severe blow with a Danda on the head of the deceased which injured him and brought him down senseless on the ground. At the trial it was, however, pleaded that the deceased remonstrated with the appellants against their action in beating up his son. The appellants retorted angrily that they were waiting for him and immediately rushed towards him. Bashir held him by his collar while Khazir held his arms and Ramzan dealt a Danda blow on his head so severely that he fell down instantaneously and was thereafter beaten with their sticks by Bashir and Khazir till he was senseless. Meanwhile several persons namely Rama Dar, Hassan Malla, Majid Ganai and Rama Ganai had also reached the spot and witnessed the assault on the deceased. The deceased was immediately carried on a cot to police station Shopian where a report of the occurrence EXPA was simultaneously lodged by Abdullah Ganai at 5-30 A. M. on 15-9-1971. The police sent the injured to the hospital where he eventually succumbed to the injuries during the night on the same day. According to the report EXPA the motive for the offence was that the deceased had planted walnut trees in Abadi Deh land in village Chatta Wattan which the appellants did not like and which drove them often to pick up quarrels with the deceased and to look after an opportunity to cause harm to him. Before the Sessions Judge, it was, however, pleaded that Ramzan Ganai had property dispute with his brother, Muma Ganai, in which the deceased had sided with Muma Ganai, who was his brother-in-law. On this account, it was further pleaded, the appellants nursed spite and ill-will against the deceased.
3. The appellants denied having committed the offence. Their case was that on the alleged night of occurrence two of them namely, Bashir and Khazir, and their younger brother, Rehman, were keeping vigil over the fruits in their orchard; that at about midnight these three persons found Abdullah Ganai stealing the fruits from the orchard; that they, therefore, apprehended him and made him to sit under the shed in the orchard; that Rehman went to call his father, Ramzan Ganai, who came to the spot along with one, Qadir Ganai S/O Shaban Ganai; that a word went round in the village meanwhile that Abdullah Ganai was caught red-handed stealing the fruits; that this brought the deceased and several others with him namely Rama Dar, Hassan Ganai, Majid Ganai and Rama Ganai to the spot; that they came armed with lathis and assaulted the appellants and also broke their lantern; that the deceased even caused injury to Ramzan Ganai; that in the melee, which ensued amidst darkness, one of the stick blows from his companions hit the deceased and injured his head; and that the death of the deceased was attributed to the appellants on account of the ill-will borne by the complainant party against them due to a land dispute.
4. The learned Sessions Judge has upheld the prosecution story advanced at the trial before him almost word for word. In this he has relied upon the prosecution evidence produced before him which he classified as under:
(a) Witnesses of occurrence namely eye witnesses;
(b) Circumstantial evidence; and,
(c) Medical evidence and evidence of investigating officers.
The eye witnesses relied upon by him are Abdullah Ganai, Hassan Malla, Aziz Mir, Rama Ganai and Rama Dar. The circumstantial evidence, according to him, consists of the recovery of the weapon of offence EXP. I which, he says, was recovered at the instance of the accused from their orchard. The medical evidence consists of the statement of Dr. Rafiq Ahmad Qazi whose testimony, as be says, 'has proved that the blow on the head had been given with such a force which caused intra cranial haemorrhage leading to cerebral compression, coma and death. The deceased instantaneously lost consciousness and did not regain it until he died'. He rejected the defence version holding that it was irrational and also uncorroborated by any material on record. In the end the learned Sessions Judge convicted the appellants under Section 302, R. P. C. and sentenced them each to life imprisonment. He did not, however, record any finding of conviction or acquittal against the appellants in respect of the offence under Section 341, R. P. C, for which also they stood charged and committed before him. But, in my opinion, the conclusion at which he has arrived on facts, amounted to conviction in respect of that charge as well. This appeal must, therefore, be decided upon the assumption that the appellants were convicted of the charge under Section 302, R. P. C. as also that under Section 341, R. P. C.
5. The first point that arises for consideration is whether Abdullah Ganai was apprehended by the appellants in the act of stealing fruits from their orchard or while he was on his way carrying food for his uncle and, whatever the case, whether he was beaten by the appellants. The case of the prosecution in this respect is that on the relevant date in the evening Abdullah Ganai was carrying food for his uncle and that enroute he was intercepted by Bashir and Khazir and dragged into their orchard where he was beaten by the appellants. The defence version on this part of the case is that he was caught red-handed stealing fruits in their orchard by Bashir and Khazir at about midnight on the relevant date. Thus there are two rival versions; one by the prosecution and the other by the defence and the Court is to see whether the preponderance of the probabilities lies with the prosecution version or with the defence version. The learned Sessions Judge has chosen to prefer the prosecution version and affirmed it. He has supported his finding in this behalf with bald observation that from the evidence produced by the prosecution it was proved:
(1) That complainant Abdullah Ganai was carrying food for his uncle after evening on 14-9-1971 and when he reached near the garden of the accused he was caught by them and dragged inside the garden;
(2) that the complainant was beaten by the accused and his screams were heard by his father and other village people who came on the spot immediately
adding later in the judgment that the assertion to the contrary made by the accused was uncorroborated by any material on record.
6. On consideration of the evidence and other circumstances of the case, I am afraid, the finding of the learned Sessions Judge to the effect that the complainant was caught and dragged into their orchard by the appellants while he was carrying food for his uncle cannot be supported. The prosecution examined Abdullah Ganai and Aziz Mir on this point. They have no doubt stated that Abdullah Ganai was intercepted and dragged into their orchard by Bashir and Khazir while he was on his way carrying food for his uncle, but their evidence cannot be accepted for the following reasons;
(a) Abdullah Ganai stated at the trial that until his father came to the spot, the beating given to him by the accused was witnessed by Hassan Ganai and Ghani Rather adding that Ghani Rather actually came on spot into the orchard. In the committal court he however stated that none came into the orchard till his father arrived there;
(b) Ghani Rather has not been examined as a witness by the prosecution although on the complainant's showing he was a material witness in the case;
(c) Aziz Mir's name has not been mentioned by the complainant in his examination EXPB recorded by the police to verify the F, I. R. as one who witnessed the occurrence. Otherwise also his statement is not credible. Before the trial court he suggested that he saw the accused dragging and beating the complainant from his own field and came to the spot only when the deceased arrived there, but in his statement before the police he said that he immediately ran to the spot and there also found Ghani Rather and when they questioned the accused as to why they were beating the complainant, they started abusing them. Before the trial Court he also stated that Abdullah Ganai and he did not talk to each other when he saw Abdullah Ganai carrying food. But in his statement before the police he asserted that Abdullah Ganai had told him that he was carrying food for his uncle. In his cross-examination before the trial Court he plainly conceded that he did not see the accused beating Abdullah Ganai with his own eyes but could only hear the hue and cry raised by him.
(d) Abdullah Ganai stated at the trial that the pot in which he was carrying food fell from his hands when Bashir and Khazir caught hold of him outside the orchard adding later that he was actually carrying one plate and one earthen-ware both of which could be found outside the orchard on the day the police came on spot. On the other hand it was stated by Aziz Mir that the pot rolled down into the adjoining gorge adding further that the place in the gorge where the pot had fallen was shown by him to the police. Hassan Malla contradicted both and stated that the pots were seen by him inside the orchard at the time of the occurrence, but could not be found on the next day. Rama Dar however states that the plate could be found inside the orchard when the police came and was identified by Abdullah Ganai as belonging to him. Rama Ganai gives yet another version. He says that he could not find the pot on spot. He could however see the cooked rice scattered on the ground when the police came there. At the top of all it was stated by Janki Nath, S. H. O. who investigated the case that he did not find any pot on spot nor also was it pointed out to him.
Thus the evidence is not consistent about what happened to the food pots and where did they actually land. Even the pots have not been recovered. That apart, it is natural that the cooked rice should have got scattered on the ground and the earthen pot broken into pieces as soon as the pots fell from the hands of Abdullah Ganai. But neither the cooked rice nor also the pieces of the earthern-ware have been recovered. In these circumstances the conclusion is irresistible that the prosecution story about the complainant having been intercepted and dragged into their orchard by the appellants while he was carying food for his uncle is absolutely baseless;
(e) According to the prosecution witnesses the deceased was carried direct from the scene of occurrence to the Police Station at Shopian where the F. I. R. was lodged immediately. The F. I. R. EXP. A was lodged at 5.30 A. M. on 15-9-1971. The Police Station is at a distance of five miles from the place of occurrence. Had the occurrence taken place in the evening, as suggested by the prosecution, one would expect the deceased to have reached the police station much earlier. This circumstance therefore lends support to the defence version that Abdullah Ganai was apprehended by Bashir and Khazir in the act of stealing fruits from their orchard at about midnight.
(f) From the post mortem examination it transpires that there were few food particles in the stomach of the deceased. Had it been that the occurrence had taken place just after evening, as suggested by the prosecution, one would expect the stomach of the deceased to be almost full. The fact that there were only few food particles in the stomach of the deceased also lends support to the defence version that it was at about midnight that the appellants Bashir and Khazir apprehended Abdullah Ganai stealing fruits from their orchard.
7. These facts and circumstances have not been noticed by the learned Sessions Judge who has therefore landed himself into error in holding that the complainant was caught hold of and dragged into their orchard by the appellants while he was carrying food for his uncle. On consideration of these circumstances and the evidence of Rehtnan D. W. corroborating the defence version on this point, the only right conclusion can be that it was in the act of stealing fruits from the orchard of the appellants that the complainant Abdullah Ganai was apprehended by Bashir and Khazir. In this process the appellants Bashir and Khazir must naturally have given some beating to him which accounts for the swelling on the upper portion of his left forearm just below the elbow joint detected by Dr. Rafiq Ahmad Qazi, P. W. who examined him on the morning of 15-9-1971. According to the doctor the complainant then also complained of the pain in his left thigh but nothing abnormal could be detected by him on examination. This is what is clear from the certificate EXP. M. 5 issued by the Doctor. The certificate is a proof positive of the fact that the beating given to the complainant was very mild and not in any way disproportionate to the right of private defence of property exereisable by the appellants when they found the complainant stealing their fruits. In these circumstances I am of the opinion that the complainant was caught red handed stealing fruits from their orchard by the appellants Khazir and Bashir who gave him a mild beating to avert the threat to their fruits posed by his act. In that view the offence under Section 341, R. P. C. cannot be held to be proved against them and the finding to the contrary implied in the judgment of the learned Sessions Judge cannot be sustained.
8. Then conies the question whether the offence under Section 302, R. P. C. has been brought home to the appellants. There is no dispute that the deceased died as a result of head injury which was inflicted on him by a Danda. Dr. Rafiq Ahmad Qazi, P. W. examined the deceased first when he was admitted into the hospital at Shopian on the morning of 15-9-1971. He found that the deceased was unconscious with the left side of his body paralysed and his pupil contracted and sluggish reacting to light. He also found an external injury on the head of the deceased which he described as under:
An angular cut on the middle of right temporal region. The margins are lacerated. Each arm of the cut about 4 cm. in length. The wound is bone deep, but on physical examination no underlying fracture was detected.
Later on the post mortem too was performed by him on the dead body of the deceased in the course of which he detected the underlying fractures and opined that the death of the deceased was due to intra cranial haemorrhage leading to cerebral compression and coma resulting from the aforesaid injury.
9. The question is: who dealt the danda blow, in what manner and under what circumstances? At the trial the prosecution case in this respect was that the screams of Abdullah Ganai brought the deceased to the spot where he protested against the appellants beating his son who immediately rushed towards him and setting upon him, Bashir held him by his collar while Khazir held his arms and Ramzan dealt a Danda blow from behind so severely that he fell down instantaneously and, thereafter was beaten with their sticks by Bashir and Khazir till he became senseless. The defence case was that the word going round that Abdullah was caught red handed stealing fruits in the orchard of the appellants, the deceased and his party came on spot armed with lathies and assaulted the appellants with the result that their lantern was broken and Ramzan Ganai got injured and amidst confusion which prevailed due to the place being plunged into darkness, a Danda blow from his own party men landed on the head of the deceased which injured him. In support of its case the prosecution cited Abdullah Ganai, Hassan Malla, Aziz Mir, Rama Ganai and Rama Dar as eye witnesses of the assault on the deceased. The appellants did not examine any evidence in rebuttal on this point. On consideration of the evidence of these witnesses and other circumstances of the case the learned Sessions Judge accepted the prosecution version and rejected that given by the defence on the ground that it was irrational and uncorroborated by any material on record.
10. Appearing for the appellants, Mr. Handoo argued that Aziz Mir's name does not find place in the F. I. R. and as such no reliance could be placed on his evidence. He further argued that the evidence of the remaining witnesses too, judged on its merits, was unworthy of any credit, being discrepant and improbable. Upon the report EXP. A being lodged the police immediately examined the complainant to verify the report. The examination was reduced to writing EXP. B which constitutes a part of the F. I. R. Therein the cimplainant mentioned Rama Dar, Hassan Malla, Majid Ganai and Rama Ganai as having witnessed the assault on the deceased. He did not mention Aziz Mir at all. The report EXP. A and the accompanying statement EXP. B are the basis of the case and the fact that Aziz Mir is not mentioned by name therein while others are so mentioned, is a circumstance against the prosecution particularly when the statement was recorded soon after the occurrence and the complainant was aware or could reasonably be aware of his presence. The omission, unless satisfactorily explained, raises a strong doubt if Aziz Mir has witnessed the assault. No such explanation is forthcoming. Abdullah Ganai P.. W. has explained it saying that he mentioned the names of Rama Dar, Majid Ganai, Hassan Malla and Rama Ganai alone to the scribe, but that is no explanation. No reliance could, therefore, be placed on the statement of Aziz Mir, as rightly argued by Mr. Handoo. The learned Sessions Judge does not appear to have noticed this aspect of the case. That is not however, enough to vitiate his finding regarding the assault on the deceased if it can be supported on the evidence of the remaining witnesses particularly when the presence of three of them namely Abdullah Ganai, Rama Dar and Rama Ganai is admitted by the appellants. That makes it necessary to examine their evidence on merits.
11. It is not unnatural that Abdullah Ganai should have raised a hue and cry after he was caught red handed by the appellants Khazir and Bashir stealing the fruits from their orchard and given a mild beating to avert the threat. It is not therefore surprising that the deceased should have come on spot and protested against the beating given to his son by the appellants. In the words of Abdullah Ganai, what happened thereafter, may be reproduced:
He (the deceased) enquired of the accused the reason for beating me. The accused retorted, 'we were praying to God that you should come; we shall kill you today.' They let me off and caught hold of the deceased. Bashir held him by his collar while Khazir held his arms and Ramzan came from behind and forcibly struck a blow on his head with Danda EXP. I which injured his head. The other two accused too had sticks in their hands. The Danda blow brought my father down on the ground and after he fell down all the three accused belaboured him with sticks.
12. To the same effect are the statements before the trial Court of Hassan Malla, Rama Dar and Rama Ganai. In their cross-examination all of them including Abdullah Ganai have stated that Bashir and Khazir did not belabour the deceased till he fell down on the ground after receiving the Danda blow on his head from Ramzan Ganai. According to them, they belaboured the deceased with sticks only after he fell down. Admittedly the Danda blow injured the deceased in his head. On medical evidence, as rightly held by the learned Sessions Judge, he instantaneously lost consciousness and fell down. It is inconceivable that Bashir and Khazir should have chosen to beat the deceased even after they found that he had got injured in his head and fell down unconscious. Otherwise also this part of the statement cannot be accepted as correct. The F. I. R. EXP. A makes no mention of it nor also the verifying statement EXP. B given by the complainant, nor even does his statement under Section 161, Criminal Procedure Code provide any indication thereto. All along in these statements the complainant has stated that all the three appellants assaulted the deceased, beat him and that Ramzan Ganai dealt a Danda blow on his head. Similar statements have been given by Hassan Malla, Rama Dar and Rama Ganai under Sections 161 and 164, Criminal Procedure Code. The suggestion made by the complainant and his witnesses at the trial that Bashir and Khazir beat the deceased after he fell down on the ground is clearly an improvement on the prosecution case. So also the suggestion made by them at the trial that Bashir held the deceased by his collar and Khazir by his arms. That too constitutes an improvement on the prosecution version as contained in their aforesaid statements.
13. The learned Sessions Judge has observed that the discrepancies noted above are mere omissions and not contradictions. In this he has relied upon the judgment of the Supreme Court reported as AIR 1959 SC 101 % in which it was held that contradiction does not include an omission. There can be no dispute about the proposition of law laid down by the Supreme Court, but it is difficult to subscribe to the view expressed by the learned Sessions Judge that the discrepancies in the present case are mere omissions and not contradictions. The earlier statement of the complainant and his witnesses mentioned above to the effect that all the three appellants fell upon the deceased and beat him with sticks as soon as he made the protest against the beating given by them to his son clearly excludes the suggestion made at the trial that Bashir and Khazir belaboured the deceased only after he fell down following the receipt of Danda blow from Ramzan Ganai and so also the suggestion that Bashir held him by his collar while Khazir held his arms. So viewed these are clear contradictions and not mere omissions, as the learned Sessions Judge would put it.
14. In this background the assertion made at the trial that Bashir and Khazir belaboured the deceased after he fell down injured on the ground and equally so the assertion that one of them held the deceased by his collar while the other held his arms cannot be held to be true. The assertion made earlier that they beat the deceased with sticks before he fell down on the ground cannot also be upheld for the simple reason that the prosecution witnesses have themselves belied this part of the story at the trial. In fact their participation in the assault on the deceased constitutes an innovation and improvement on the actual occurrence pertaining thereto considering the fact that one injury alone could be detected on the person of the deceased and not more, as the case would be, if Bashir and Khazir had belaboured the deceased with sticks, whether before or after he fell down on the ground. In that view they cannot be connected with the murder of the deceased. Not so Ramzan Ganai. His participation in the crime has been distinctly brought out and it has been amply proved by them that immediately after the protest was made by the deceased, Ramzan Ganai came from behind and forcefully gave a Danda blow on the head of the deceased which instantaneously brought him down on the ground senseless. On this point their testimony stands unshaken by the cross-examination or by anything else on the record. It is true that their testimony is mixed with untruth in other respects but that would not justify its total exclusion and the suggestion to the contrary made by Mr. Handoo cannot be accepted. The maxim 'Falsus in uno falsus in omnibus' has not received acceptance by the courts in our country. The law is well settled that the evidence of a witness need not be necessarily true in all respects, but may be partly true and partly untrue. It is for the court to separate the truth from the falsehood. Where however the evidence of a witness is not true on a material particular, the court may reject it in its entirety. In the present case the witnesses may not have come out with truth about the part played by Bashir and Khazir but that would not justify their testimony being rejected as regards the part played by Ramzan Ganai when no fault can be found with this part of their testimony on material particulars.
15. The medical evidence too lends support to the direct evidence of the prosecution witnesses regarding the part played by Ramzan Ganai. The injury on the head of the deceased has been found on the middle of the right temporal region and it is natural that the blow struck from behind should land at this place. Moreover the fact that the deceased was found unconscious and paralysed on the right side unmistakably shows that the blow was extremely severe. It gets further support from the recovery of Danda EXP. 1 from the orchard of the appellants which, according to the doctor, could cause the injury found on the head of the deceased. The learned Sessions Judge has observed that the Danda was recovered at the instance of the appellants which is not however correct on the evidence given by the witnesses who simply say that it was recovered from the orchard of the appellants, where it was lying under the grass, as rightly pointed out by Mr. Handoo, but that would not militate against the recovery being held as a piece of evidence corroborating the prosecution story. Even if the recovery were excluded that would not affect the conclusion arrived at about on consideration of the direct evidence and the medical evidence.
16. The appellants have pleaded that the deceased and his party came armed with Dandas and assaulted them and even broke their lantern and caused injury to Ramzan Ganai. But none of these circumstances is borne out by the prosecution evidence nor also have the appellants produced any evidence to prove the same. No injury could be found on the person of Ramzan Ganai nor even could the broken pieces of the glass chimney of the lantern be found on the spot, as the case would have been if the lantern had been broken by the deceased or those accompanying him. The mere fact that the lantern has not been recovered by the police would not adversely affect the conclusion arrived at above particularly so when Ramzan Ganai has been distinctly identified by the prosecution witnesses as having inflicted the deadly blow on the head of the deceased with regard to which there is no reason to disbelieve them. I would therefore hold that the deadly blow was given to the deceased by Ramzan Ganai from behind when the deceased protested against the beating given by the appellants to his son. It may be that the protest may not have been mild and would in all probability be accompanied by abuses, but that could not provide any justification for the deadly blow being given on his head by Ramzan Ganai. The finding given by the learned Sessions Judge is therefore varied to the extent that the Danda blow on the head of the deceased was given by Ramzan Ganai under the circumstances stated above without Bashir and Khazir assisting or facilitating his doing so.
17. The next question for consideration is whether on facts established the conviction of Ramzan Ganai under Section 302, R. P. C. can be upheld. Mr. Handoo argued that the prosecution had failed to establish any motive for the crime, and as such intention to kill could not be attributed to Ramzan Ganai. According to him, the motive attributed to the appellants in the F. I. R. was that the deceased had planted walnut trees in Abadi Deh land which the appellants did not like, while at the trial it was stated that the ill will between the parties was generated as a result of the deceased siding with Muma Ganai in his dispute about property with his brother Ramzan Ganai. In the absence of proof of motive, he emphasised, intention to kill could not be attributed to Ramzan Ganai. A similar argument was advanced before their Lordships of the Supreme Court in a case like the present in Chahat Khan v. State of Haryana : 1973CriLJ36 and it was repelled by their Lordships with the following observations:
Lastly we may mention that a good deal of emphasis has been laid on the absence of motive and the fact that the appellant did not use his gun and only used his lathi which according to the argument of the learned Counsel showed that he had no intention to kill the deceased. We are unable to accede to this contention for the simple reason that injury No. 1 was on a region of the head which was vital part. According to the medical evidence this injury proved fatal. When a person is causing an injury on such a vital part the intention to kill can certainly be attributed to him.
Considering the severity of the blow, the fact that it was given on a vital part like the head and the fact that it was given in a manner and under the circumstances which would suggest that the assailant, Ramzan Ganai had taken undue advantage and acted in cruel manner, intention to kill must necessarily be attributed to him. Needless to add that the prosecution may have prevaricated regarding the particulars about motive, but one thing is certain that the parties were not on good terms which has even been admitted by the appellants in their statements under Section 342, Criminal Procedure Code when they say that the assault on the deceased was foisted on them on account of enmity resulting from a property dispute. That way ill will stands established, although proof of motive or ill will is unnecessary to sustain the conviction where there is clear evidence, as in the present case, that the accused has caused a fatal injury on a vital part of the body of the deceased. In that view Ramzan Ganai's case clearly falls under Section 300 thirdly R. P. C. and his conviction under Section 302, R. P. C. is perfectly justified. In the circumstances of the case the sentence of life imprisonment imposed on him cannot also be considered to be excessive or unreasonable.
18. In the result I acquit Bashir and Khazir appellants of all the charges against them. They shall be set at liberty forthwith. I also acquit Ramzan Ganai of the charge under Section 341, R, P. C. but maintain his conviction and the sentence imposed on him under Section 302, R. P. C. The appeal and the reference shall stand disposed of accordingly.
Jaswant Singh, J.
19. I agree.