Adarsh Sein Anand, J.
1. Haji Lal Din, Wasrir Mohd., MoM. Gulam Qadir, Gammi and Gulab Din along with others and one Wali Mohd. were tried for offences under Sections 302/201, 396/452, 326/149. R.P.C. in the Court of learned Sessions Judge, Poonch. Wali Mohd. accused had absconded after the occurrence and he was proceeded against under Section 512, Criminal Procedure Code. The above named six accused were sentenced as under:
(i) Under Section 302/34, R.P.C. sentence to death.
(ii) Under Section 201, R.P.C. five years rigorous imprisonment.
(iii) Under Section 325, R.P.C. Wair Mohd. appellant only to five years rigorous imprisonment.
2. The six convicts, named above, have filed this appeal against their conviction and sentence and the learned Sessions Judge, Poonch, has also forwarded the record of the case for the confirmation of the sentence of death awarded to the convicts.
3. Shorn of all the details, the prosecution story is, that Mst. Malo w/o Abdul Gani, deceased had been abducted by Wali Moh'd, absconding accused, with the help of the other accused persons and Abdul Gani deceased was able to recover Mst, Malo with the help of the police from Wali Moh'd accused. Subsequently, Mst. Malo was once again abducted by Wall Moh'd with the assistance of the accused persons and on 1st April, 1973, the deceased once again recovered Mst. Malo from the possession of Kala Wali Moh'd and Alam Din accused persons. It is further the prosecution case that Abdul Gani deceased had divorced Mst. Malo earlier, but he had re-married her according to Mam customs. Since Abdul Gani deceased was successful in getting back Mst. Malo, the accused persons nursed a grudge against him. Apart from this there was also some dispute between the deceased, Haji Lai Din and Wazir Moh'd accused wife regard to the taking of some passage from the land of the deceased by these accused.
4. It is then alleged by the prosecution that Abdul Gani deceased had constructed a dhara in 'Dhok Piranwali' for the purpose of keeping his cattle and for use as his personal residence. The accused persons, with a view to murder Abdul Gani deceased, sent a message to him through Haji Lal Din appellant that the Gujjar Baradari was going to demolish his 'Dhara'. On receiving this message, the deceased along with his mother, daughter and others left for the 'Dhara' in the same evening. He took some household goods etc., with him also. Apart from his mother and daughter he was accompanied by Bhulla P.W. 5, Moh'd Hafiz P.W. 4, Moh'd Issaq P.W. 3, Billa P.W. 2 and Abdul Aziz P.W. 1. Before reaching the Dhok Piran Wali Moh'd Fazal P.W. 6 also met them on the way and joined them. The mother and daughter of the deceased were going a little ahead of the others and they reached the Dhok a little before the deceased and other members of his party reached there. The appellant and others, numbering about two hundred persons, had collected at the Dhok and were found dismantling the Dhara of the deceased. Some of the deceased persons on seeing the mother and the daughter of the deceased started belabouring them. It is also alleged by the prosecution that the earrings from the ears of the daughter of the deceased and Bangles from the wrist of the mother of the deceased were also removed by members of the accused party and taken away. When Abdul Gani deceased reached near his Dhara all the accused persons started beating him also mercilessly with lathies and stones. Apart from the deceased, beating was also given by the members of the accused party to the first informant, Abdul Aziz P.W. 1 and some others. Habib Ullah P.W. 2, had also received injuries at the hands of the accused. The companions of Abdul Gani, seeing the beating ran away, leaving the injured persons at the dhara. Abdul Gani deceased had been dealt blow on his head. He put his hand on his head for covering the wound and found that blood was coming out of the same. To escape further beating, Abdul Gani ran towards a nearby Nalla. Wazir Moh'd Haji Lal Din, Moh'd Gulab Din, Gammi, Ghulam Qadir, and Wali Moh'd qhased the deceased towards the Nalla. While running the deceased was all the time crying and pleading that he should not be beaten and that his life be spared. All the seven accused mentioned above, caught hold of the deceased in the Nalla and gave further beating to him. In the meanwhile the other companions of the seven accused who had remained behind at the Dhara continued demolishing the Dhara. Wazir Moh'd accused had earlier snatched away a Gun from the hands of Moh'd Issaq, P.W. Abdul Aziz P.W. spent the night in the jungle out of fear and on the next day went to lodge the F.I.R. The F.I.R. was lodged on 19th April, 1973, at 11.30 A.M. and the police arrived at the scene of occurrence. The dead body of the deceased was recovered at the instance of Wali Moh'd accused and after preparing the inquest report, it was sent for postmortem examination. Bloodstained earth and other bloodstained articles were also seized from the spot by the investigating officer. During the investigation, various other articles were also recovered and according to the report of Chemical Examiner and Serologist Ex. PKK, the stick recovered at the instance of Wazir Moh'd vide recovery memo Ex. PQ was found to be bloodstained.
5. Dr. Krishen Lal conducted the post-mortem examination of the deceased. He also examined Habib Ullah and Mst. Farzi P. Ws. for their injuries. The two injured were also examined by Dr. Surmder Singh P.W. 18.
6. The prosecution in support of its case led evidence which may be classified under the following categories:
(2) Eye-witnesses' account.
(3) Circumstantial evidence including recoveries etc.
(4) Medical evidence.
We have heard Mr. S.A. Salaria for the appellants, and Mr. R.P. Sethi, the learned Additional Advocate-General, for the State and have also perused the records.
7. (1) Motive.
The first motive as alleged by the prosecution is that Wali Moh'd the absconding accused had eloped with Mst. Malo and that the deceased who was the husband of Mst. Malo had recovered her from his possession with the help of police. Wali Moh'd had again taken away Mst. Malo from the house of the deceased and this time the deceased recovered Mst. Malo from the possession of Wali Moh'd and his companions without the police aid and, therefore, the accused persons bore some grudge against the deceased on that account. They were looking for an opportunity to kill the deceased for that reason.
8. The prosecution has also alleged another motive in this case. It is alleged that the pastures of the deceased and Wazir Moh'd were adjoining and that Wazir Moh'd and Haji Lal Din wanted a passage through the land of the deceased for taking their animals for taking water from the nearby Nalla but the deceased refused to grant them that facility.
9. Mr. Salaria, the learned Counsel for the appellants, has submitted in the first place that motive has not been established on the record and in the second place that motive was not sufficient for the appellants to commit the murder.
10. Mr. R.P. Sethi, the learned Additional Advocate-General, has on the other hand contended that motive has been clearly established against the appellants.
11. So far as the motive is concerned there is sufficient evidence on the record in the evidence of the eye-witnesses, to show that Mst. Malo, wife of the deceased had been abducted by Wali Moh'd accused and the deceased had recovered her from his custody with police aid on one occasion and without the police aid on the other. It is but natural that the accused Wali Moh'd would bear a grudge against the deceased on that account. There is also ample evidence to justify the finding that the other accused persons belong to the party of Wali Moh'd. Under the circumstances it stands established that Wali Moh'd and others had a motive to cause harm to the deceased.
12. There is also sufficient evidence on the record to show that Wazir Moh'd and Haji Lal Din accused had some dispute with regard to the land adjoining the land of the deceased. The deceased had refused to grant passage to the accused Wazir Moh'd and Haji Lal Din from his land and it is but natural that the accused would be annoyed with the deceased on that account. The evidence of Moh'd Hafiz P.W. 2 to the effect that the said dispute between Haji Lal Din, Wazir Moh'd on one side and the deceased on the other had been compromised two or three days prior to the occurrence has not been substantiated from the record as no compromise deed has been brought on the record. We are, therefore, satisfied from the record about the existence of some dispute between accused Wazir Moh'd and Haji Lal Din on one side and the deceased on the other with regard to a passage from the land of the deceased. Prosecution has, therefore, established the existence of motive for the accused persons to commit the crime.
13. Motive, in any case, does not acquire much significance in a case which is based on ocular testimony of witnesses and it only lends credence to the prosecution case when taken along with other evidence.
14. So far as the sufficiency or insufficiency of motive is concerned, it is difficult for a court of law to weigh the motive in golden scales. It depends upon the nature of the case and the character and antecedents of the offenders. The importance of sufficiency or insufficiency of motive, however, assumes importance to determine the extent of guilt of accused persons. The motive, as established on the record does go to suggest that the accused persons had a definite motive to cause some harm to the deceased, may not( be to actually murder him.
15. (2) Eye-witnesses' account:
The prosecution has examined at the trial Abdul Aziz P. W 1; Habib Ullah F.W. 2; Moh'd Issaq P.W. 3; Moh'd Hafiz P.W. 4; Bhalla P.W. 5; Mohd. Fazil P.W. 6; Mst. Farzi P.W. 7; and Hamid Ullah P.W. 9 as eye-witnesses of the occurrence. In addition to these eye-witnesses, the statement of Alaf Din who had been examined in the committing court and was given up in the Sessions Court was also transferred on the file of the Sessions Court under Section 288, Criminal Procedure Code. It is not at all intelligible as to how the learned Sessions Judge brought on record the statement of Alaf Din recorded in the committing court when Alaf Din was not produced as a witness in the Sessions Court. It seems that the learned Sessions Judge mechanically transferred the statement of Alaf Din under Section 288, Criminal Procedure Code without even caring to look to the provisions of the section. From a perusal of the record, I find that the learned Public Prosecutor made an application on 30th November, 1974, for transferring the statement of Alaf Din and some other witnesses under Section 288, Criminal Procedure Code. This application, however, does not seem to have been decided by the learned Sessions Judge, as I have gone through the various interim orders and I do not find any order with regard to this application of the Public Prosecutor on the record. The learned Sessions Judge wrongly took into consideration the statement of Alaf Din recorded by the committing Magistrate. This statement shall have to be ignored. We shall now consider the evidence of other eye-witnesses.
16. Abdul Aziz P.W. a nephew of the deceased deposed about the motive as well as the actual occurrence. He has narrated the prosecution version noticed in the earlier part of this judgment and has fully supported the prosecution version. He lodged the F.I.R. Ex. PA at the police station. During cross-examination, the witness admitted that he and the deceased had joint land, that they were living together and were also cultivating the Dhok jointly. He was confronted with the various portions of his statement recorded in the committing court and his statement contained in the FIR with a view to show certain omissions and improvements made by the witness.
17. Habib Ullah P.W. 2, also supported the prosecution case as noticed earlier and deposed that he had been called by the deceased to carry his household goods to the Dhara and that he had actually accompanied the deceased to his Dhara. He was paid Rs. 4/- as wages. He further deposed that Bhulla, Moh'd Hafiz Abdul Aziz, Mst. Farzi and Saliman P. Ws. also accompanied him from the village and when all of them reached Gordhiwala Nalla, they saw Moh'd Issaq P.W. also coining with a rifle in his hand. On being persuaded by the deceased, Moh'd Issaq P.W. also joined them and all of them went to the Dhara and Fazal P.W. was also joined on the way. The witness went on to depose that when they reached near the Dhara, they found that Haji Lal Din and Wazir Moh'd accused were quarrelling with Mst. Farzi P.W. in the compound of the Dhara of the deceased while other companions of the accused were also present there. The deceased asked the two above named accused persons to stop fighting with Mst. Farzi and her mother and saying so the deceased started climbing towards Dhara. When the deceased was going up to the Dhara, he was hit with a stone hurled by Wazir Moh'd accused which hit him on his head. The deceased put both his hands on his head and ran towards the Nalla to escape further beating when seven accused named In the earlier part of the judgment (appellants and Wall Moh'd) followed him. On hearing sound of hue and cry coming from the Nalla, the witness along with others also went towards the Nallah. On seeing the witness coming with other persons, Wazir Moh'd accused hit the witness with a sota which was in his hand and caused him an injury on the head. He further threatened that the witness would be killed if he came forward. The witness got frightened and ran towards the jungle and spent the night in the jungle, going to his house in the morning of the next day. At the trial, the witness identified Haji Lal Din, Wazir Moh'd Ghulam Qadir, Wazir Bi and Mst. Makhni in the court as being present along with other accused at the scene of occurrence. The witness was cross-examined at length but nothing of any substance was elicited from him during the cross-examination. The witness, however, admitted that he did not go to the police station to identify the accused. He denied the defence suggestion that all the injuries received by the deceased had been received from a Danda' and that the rifle was in the hands of Abdul Gani who had attempted to fire the gun at the accused but the cartridges had misfired.
18. P.W. Issaq P.W. 3, Moh'd Hafiz P.W. 4, Bhulla P. W 5 and Hamid Ullah P W. 9 have also supported the version given by Abdul Aziz and Habib Ullah P. Ws. as noticed above. During the cross-examination certain discrepancies in their statements in court and their earlier statements were brought out but by and large their testimony has remained unshaken and all of them stood the test of cross-examination rather well. Moh'd Fazil Ali P.W. 6 while narrating the occurrence as deposed to that the other eye-witnesses went on to state that Wazir Moh'd accused abused the deceased at the Dhara which abuse was returned by the deceased and on that Wazir Moh'd ran towards the deceased who fired at him from the rifle which was in the hands of the deceased. This statement was contrary to the earlier deposition of the witness and, therefore, at the request of the public prosecutor he was declared hostile by the court and allowed to be cross-examined by the Public Prosecutor. He was confronted with the various portions of his statements but he denied to have made any of those statements to the police, During the cross-examination by the counsel for the defence he supported the defence case.
19. Mst. Farzi P.W. 7, who is the mother of the deceased also narrated the entire occurrence as has been deposed by Abdul Aziz P.W. 1 and Habib Ullah P.W. 2. She further alleged that Alam Din accused who was dismantling the Dhara gave her beating with a Sota and also kicked her. She further deposed that Wazir Moh'd accused had lifted her and thrown her on the ground two or three times, as a result of the beating received by her she sustained injuries. She was medically examined for those injuries. She was also subjected to searching cross-examination but she stood the test well and her testimony remained unshaken.
20. The learned Counsel for the appellant has criticised the evidence of Abdul Aziz P.W. 1 by arguing that he is an interested witness being related to the deceased and that since the witness had been disbelieved by the learned Sessions Judge at page 59 of his judgment no reliance should be placed on his testimony. It has also been contended that the witness had made material Improvements in his statement in the court from that of his earlier statement and that since he had impleaded fifteen other persons in addition to the appellant, who have since been acquitted, and there is no appeal against their acquittal, it would not be safe to place any reliance on his testimony for upholding the conviction of the six appellants. It has been further vehemently argued that Abdul Aziz P.W. did not see the occurrence and was in fact a false witness. Support for this argument was sought from the evidence of Moh'd Fazal P.W. 6 according to whom this witness had enquired from him the details regarding the occurrence and had then gone to lodge the report. The argument precisely is that had the witness himself seen the occurrence he would not have asked for the details from Moh'd Fazal P.W. 6. Further support for this argument has been sought from the evidence of Moh'd Issaq P.W. 3 who was confronted with a portion of his previous statement recorded under Section 164, Criminal Procedure Code wherein he had not mentioned the name of Abdul Aziz as a person accompanying the deceased. Reference has also been made to the statement of Moh'd Hafiz P.W. 4 who had also not mentioned in his statement in the committing court that Abdul Aziz P.W. had accompanied the party to Dhara specifically. Reliance was also placed by the learned Counsel for the appellant on the observation of the learned Sessions Judge in the judgment wherein he had observed that as a result of spot inspection it was doubtful to hold that Abdul Aziz P.W. and the other alleged eyewitnesses could have witnessed the occurence from their respective places.
21. Great deal of stress was also laid by the learned Counsel for the appellants to state that the F.I.R. in the case had been recorded after the recovery of the dead body and that the F.I.R. had been ante-timed. Support for this argument was sought from the statement of Karamat Ullah P.W. 11, who stated in his deposition in court that after the body of the deceased had been recovered, the F.I.R. report was written and re-written twice in the Village School itself after due deliberations. It has also been argued that the F.I.R. was considerably delayed and that delay by itself was fatal to the prosecution case.
22. I shall first deal with the argument in relation to the F.I.R. The first attack of the learned Counsel with regard to the F.I.R. is, that it was a delayed report and, therefore, the prosecution case had become doubtful. Whereas, it is correct that the occurrence took place on the night intervening 18/19 April, 1973, and the F.I.R. was lodged the next morning at 11.30 A.M. and, therefore, there is delay in the lodging of the F.I.R. but the delay to my mind has been properly explained by the prosecution. According to the evidence of the first informant Abdul Aziz P.W. on being threatened of being killed by the accused party, had remained in the Jungle during the night and went to lodge the report at the police station only the next morning. This statement was not at all challenged in cross-examination by the defence. Therefore, the delay has been properly explained and the first attack made by the learned Counsel is repelled.
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(Rest of Para 22 and part of Para 23 are cut. On consideration of the totality of the circumstances the judgment holds):
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The second attack of the learned Counsel about the lodging of the report after the recovery of the dead body also therefore fails and is not valid. There is intrinsic evidence on the record to show that the report Ex. PA was lodged at the time it purports to have been lodged at the police station.
24. Coming now to the criticism of the evidence of Abdul Aziz P.W. as made by the learned Counsel for the appellant
25. The ground for disbelieving Abdul Aziz P.W. by the learned Sessions Judge, is in our opinion as we shall presently see not at all justified. It is only Karamat Ullah and Fazal P.W. (who was declared hostile by the prosecution) who have tried to show that Abdul Aziz P.W. did not actually know about the occurrence and that he lodged the report after learning about the occurrence from other witnesses including Fazal P.W. 6. The omission, of the name of Abdul Aziz P.W. as a member of the party, in the police statement of Moh'd Hafiz or Moh'd Issaq P.W. is not of much significance. In the first place, the learned Sessions Judge should not have permitted the defence counsel to cross-examine these witnesses with regard to the omissions in their police statements, which police statement have also not been brought on the record as required by law, and in the second place, a careful reading of the entire statement of these witnesses does not suggest that they had excluded the presence of Abdul Aziz P.W. from the party. It is amply established from the evidence of the other eye-witnesses that Abdul Aziz P.W. was a member of the party which had gone to the dhara with the deceased on the fateful evening. Even, Moh'd Hafiz and Moh'd Issaq P. Ws. have not said that Abdul Aziz was not present. It is only that while giving the names of the members of the party who went to the dhara, that these two witnesses omitted to give the name of Abdul Aziz P.W. From this omission it is not possible to draw the conclusion that Abdul Aziz P.W. was not present at the time of occurrence or that he did not see the occurrence.
26. The next attack on the evidence of Abdul Aziz P.W. is that he is a relation of the deceased and as such not reliable. This argument has not impressed us. It is no doubt true that Abdul Aziz P.W. is a nephew of the deceased and he also had joint cultivation with the deceased. But on that ground the evidence of the witness cannot be discarded. The only caution which the court takes in such cases is to scrutinize the evidence of a relative or interested witness more carefully. This aspect is present to our minds. As a matter of fact we have found Abdul Aziz P.W. to be a reliable witness and since he is the relation of the deceased and he also had joint cultivation with the deceased, he would, in our opinion, be a most natural witness who would have accompanied the deceased to the dhara in the circumstances of the case.
27. So far as the alleged improvement made by the witness in his statement are concerned they are all of a minor nature and they reflect the truthfulness of the witness rather than make him a false witness. The argument of the learned Counsel that since 15 of the other accused who were also implicated by this witness have been acquitted, no reliance should be placed on his testimony has not appealed to us. In the first place, Falsus in uno falsus in omnibus is neither a sound rule of law nor a rule of practice accepted by the courts in India and the witness cannot be held to be a false witness on that account. The acquittal of those persons has put Us to our guard to scrutinize the evidence of Abdul Aziz P.W. as well as the other eye-witnesses more carefully, After examining the evidence of Abdul Aziz P.W. carefully we find that his evidence is worthy of credence. He has detailed the occurrence and has named the appellants as the participant in the crime. His evidence has also received corroboration from the statement of Habib Ullah. Moh'd Issaq, Moh'd Hafiz, Bhulla, Mst. Farzi and Hamid Ullah P. Ws. We, therefore, do not find ourselves persuaded to doubt the presence or reliability of Abdul Aziz P.W.
28. We shall deal with, separately the observations of the learned Sessions Judge based on the spot inspection and the demonstration held by him and the value of conclusions arrived at by the learned Sessions Judge from the spot inspection, and the demonstration regarding the falsity of the prosecution witnesses.
29. Out of the eye-witnesses, Mst. Farzi and Habib Ullah P. Ws. are stamped eye-witnesses. They had received injuries during the occurrence, which lends further assurance to their presence at the time of the occurrence. Both these witnesses have fully corroborated the prosecution version as detailed above. According to the Medical evidence Mst. Farzi P.W. had received one grievous and two simple injuries and Habib Ullah P.W. had received a lacerated wound on the right parietal region, two injuries on left temporal region and shoulder blade and a bruise on the right forearm. These injuries are hall mark of assurance of the presence of these witnesses at the time of occurrence.
30. The only criticism of the learned defence counsel regarding the evidence of Habib Ullah P.W. and Mst Farzi P.W. 7 is based on some discrepancies in their statements. These discrepancies to our mind, are of very insignificant nature and do not at all detract from the reliability of the witnesses. There is no suggestion and if we may say rightly too, that the injuries on these persons were' self-inflicted or self suffered. These witnesses stood the test of cross-examination very well and we are impressed with their testimony.
31. The remaining eye-witnesses have also supported the prosecution version and nothing has been brought to our notice which may warrant the rejection of their evidence.
32. The learned Counsel for the appellant has sought to get the witnesses declared unreliable on the basis of the observations of the learned Sessions Judge in the judgment under appeal. It has been argued that since the learned Sessions Judge did not believe these witnesses, this Court should also reject their evidence.
33. From a perusal of the Judgment of the learned Sessions Judge we find that most of the eye-witnesses have been disbelieved. Reliance has only been placed on the evidence of Mst. Farzi P.W. 7 and some recoveries to record the conviction of the appellants. The main ground for disbelieving the eye-witnesses by the learned Sessions Judge seems to be the impression created on his mind from the holding of some demonstration and spot inspection which created an impression on his mind that these witnesses could not have seen the occurrence from the places alleged by them. The procedure adopted by the learned Sessions Judge in this regard, to say the least, is highly improper and unwarranted by law. The trial court, of course, has the power and jurisdiction to visit and inspect any place in which an offence is alleged to have been committed for properly appreciating the evidence given at the trial, but this power has to be exercised in accordance with the provisions of Section 539-B, Criminal Procedure Code and the learned Sessions Judge cannot create a procedure of his own in contradiction to the procedure prescribed by law. At this stage it would be relevant to note the provisions of Section 539-B, Criminal Procedure Code.
539-B. (1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost: Provided that, in the case of a trial by jury, the Judge shall not act under this section, unless such jury are also allowed a view under Section 293.
34. From a perusal of the record we find that in the interim order dated 9th March, 1974, the learned Sessions Judge has mentioned the desirability of holding spot inspection for properly appreciating the evidence but thereafter there is no reference to the inspection conducted in any other interim order. The only reference about the inspection is there found in the judgment dated 31st August, 1974. The Mandatory Provisions of Section 539-B (1), Criminal Procedure Code to the effect that the trial Judge 'shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection' has been respected in its breach by the learned Sessions Judge. There is no inspection report or memorandum of inspection of the court file, and this Court is not in a position to see whether the observations of the learned Sessions Judge are correct or not. The object for insisting the preparation of memorandum about the spot inspection is to enable the appellants or the revisional Court to see whether the inferences sought to be drawn on the basis of the spot inspection are justified or not. The court has been deprived of that examination. The learned Sessions Judge also held some demonstrations at the place of occurrence as transpires from a perusal of his judgment. There is no provision in the Criminal Procedure Code justifying the holding of any such local demonstration. The learned Judge has, in doing so, himself played the role of a witness which is exceptionable. While disbelieving the witnesses he has relied upon his own personal observations to show that the witnesses could not have seen the occurrence from the places where they are alleged to have been hiding. It is well settled that the personal observations of the trial Judge cannot take the place of evidence in a case and that a trial Judge is not entitled to allow his views or observations to take the place of evidence because such view or observations of his cannot be tested by cross-examination and the accused and the prosecution do not get any opportunity to furnish an explanation in regard to the same. Moreover, the witnesses could not be declared as liars and false witnesses on the basis of such personal observations without any suggestion having been given to them that they could not have seen the occurrence from the places alleged by them. The learned Sessions Judge was completely in error in adopting the procedure of holding demonstration and making local inspection and disbelieving the eye-witnesses on the basis of his personal observations. How the learned Sessions Judge remembered the details of the inspection, five months after the spot inspection without any memorandum of inspection having been prepared, at the time of writing the final judgment on 1-8-1974, is beyond our comprehension. We are afraid that we cannot agree with the learned defence counsel to reject the evidence of the eye-witnesses in view of the findings of the learned Sessions Judge, which to our mind are innocuous.
35. There is also no justification for remanding the case for fresh trial. This Court, while hearing en appeal against conviction and a murder reference for confirmation of sentence of death, has a duty to reappraise the entire evidence and in that view of the matter we do not think it desirable or proper to send the case back for retrial especially when fifteen co-accused have been acquitted and there is no appeal against their acquittal. The evidence of the witnesses has been appreciated by this Court without taking into consideration the observations of the learned Sessions Judge based on the local inspection and demonstration carried out by him.
36. From the above discussion, it transpires that all the eye-witnesses have given a clear and cogent account of the entire occurrence and have fully supported the prosecution case involving all the appellants as the participants in the assault of the deceased at the Dhara and the nalla and about the causing of injuries by the accused party to the other witnesses Habibullah P.W. 2 and Mst. Farzi P.W. 7.
37. The eye-witnesses namely Abdul Aziz P.W. 1, Habibullah P.W. 2. Mohd. Issaq P.W. 3, Bhulla P.W. 5, Mst. Farzi P.W. 7 and Hamidullah P.W. 9 have named and identified all the six appellants as being present along with others at the dhara and being the persons who along with Wali Moh'd, the absconding accused, chased the deceased and caused injuries to him in the Nallah. Moh'd Hafiz P.W. 4, however, identified Wazir, Haji Lai Din, Gammi and Gulab Din as the assailants of the deceased along with others whose names he did not know but that would not cast any doubt on the prosecution case in the face of other overwhelming reliable and trustworthy evidence. There is thus sufficient consistent and cogent evidence on the record to show that the appellants and Wali Moh'd accused caused injuries to the deceased and the other prosecution witnesses in the manner alleged by the prosecution.
38. The various discrepancies pointed out by the learned Counsel for the appellants in the statements of P.W. 3, P.W. 4 and P.W. 9 are of minor nature and are bound to occur in the statements of truthful witnesses. Similarly the othere criticism relating to the relationship of some of the witnesses to the deceased is also no ground to disbelieve them. It has also been contended that the conduct of P.W. 9 Hamidullah was unnatural as he remained a silent spectator and did not participate in the fight to stop the parties'. The instinct of self-preservation is paramount and in the circumstances it could not be expected that this witness would join the afray at the risk of his own safety. Similarly the criticism about P. WE. Bhulla that he remained quiet about the occurrence is not such which can cast any doubt on the veracity of his evidence.
39. After carefully considering the evidence of the eye-witnesses on threcord an impression has been created in our mind that they are truthful and reliance can be placed on their testimony.
40. Coming now to the third category of evidence on which the prosecution relies i.e., the circumstantial evidenc including the recoveries, etc. There have been many recoveries in the case but the only material recoveries for the purpos of this appeal relates to the recovery of n bloodstained Lathi and a Gun at the instance of Wazir Moh'd and also the recovery of the dead body at his instance and recovery of another lathi at the instance of Haji Lal Din. The Lathi recovered at the instance of Wazir Moh'd was found to be stained with human blood. Similarly the lathi recovered at the instance of Haji Lal Din was also found to be stained with human blood. Before dealing with these recoveries, let us first deal with thefindings of the learned Sessions Judge regarding the disclosure statements allegedly made by the accused persons. The learned Sessions Judge held those to be inadmissible in evidence being hit by Article 20(3) of the Constitution of India. We are surprised at the approach of the learned Sessions Judge. Section 27 of the Evidence Act is an exception to the general rule and provides for admitting in evidence so much of the statement of an accused person which leads to the discovery of a fact relevant to the trial. The learned Sessions Judge has referred to Sections 24 and 25 of the Evidence Act and Article 20(3) of Constitution of India but curiously enough has ignored the provisions of Section 27 of the Evidence Act We would not like to comment on this obvious fallacy in th' reasoning of the learned Sessions Judge and would content ourselves by saying that the reasoning is erroneous.
41. Disclosure statement of Wazir Moh'd P.W., Ex. PJ was made in the presence of Abdul Rehman, Faiz Hussain and Matiullah P.W. on 19-4-1973. Consequent upon this disclosure statement, the dead, body was recovered at the instance oi; Wazir Moh'd from under some bushes vide recovery memo Ex. PZ which was attested by Abdul Rehman and Faiz Hussain P.W. The disclosure statement contains some incriminating statement also but that is clearly inadmissible. Only so much of the disclosure statement which relates to the discovery of the dead body is admissible and will be taken into consideration.
42. The learned Counsel for the appellant has submitted that the witnesses of recovery are not reliable and such the recovery be ruled out of consideration. Prosecution examined Abdul Rehman and Habiullah as its witnesses in support of the recovery. Faiz Hussain the third witness was given up. There is nothing in the statements of Abdul Rehman or Matiullah P.W. which may suggest that they are false witnesses. Learned Counsel, in fact, has not been able to make any serious criticism against these witnesses eitcept saying that they were interested witnesses. Similar is the position with regard to the disclosure statemaat of Haji Lal Din EK. PP leading to the recovery of some ornaments and a lathi vide seizure memo P.R. The witnesses of this recovery namely Duni Moh'd Chowkidar and the S.H.O. have fully corroborated the recovery of lathi At the instance of Haji Lai Din and nothing has been pointed out to us from which we may draw on inference that the recovery is not genaine.
43. Gukb Din appellant also led to the recovery of a lathi from inside his house vide recovery memo PV. The recoveries are supported by Duni Moh'd Chowkidar and the SHO. Nothing of substance has been brought on the record to doubt the genuineness of this recovery either. The recovery of a blood-stained lathi at the instance of Wazir Moh'd from the back of the Dhara of the deceased has also been established on the record from the evidence of Duni Moh'd Chowkidar and Deputy Superintendent of Police. No infirmity of any substance has been brought out in, the evidence of the recovery witnaroes which may cast any doubt with regard to these recoveries. This blood-stained lathi was recovered on the disclosure statement made by Wazir Moh'd while in police custody and the recovery pursuant thereto was effected vide Memo Ex. pO in the presence of Faiz Has an Abdul Rehman and Duni Moh'd on 22-4-1973. This lathi was found to be stained with human blood. The prosecution has also established the recovery of one Single Barrel 12 bore Gun from Wazir Moh'd vide recovery memo Ex. PN. which gun had been according to the prosecution snatched by the accused from Issaq P.W. Prosecution has also established recoveries of lathies, ornaments, shoes of the deceased etc., but since those are not of any incriminating nature we refrain from dealing with those recoveries for the purpose of this judgment.
44. The recoveries of blood-stained sota, gun and the dead body at the instance of Wazir Moh'd and the sota at the instance of Haji Lal Din which have been proved by reliable and cogent evidence lend enough corroboration and assurance to the version of the prosecution as given by the eye-witnesses.
45. So far as the medical evidence is concerned it is of importance in this case as the offence with which the accused are charged is of murder punishable under Section 302, R.P.C. It shows that at the time of postmortem of the deceased conducted by Dr. Krishen Lal at Darhal, the following injuries were found:
(1) Lacerated wound 3' long vertex.
(2) Lacerated wound l' long left parietal region.
(3) Four lacerated wounds 3' to 1' in diameter in the interior left leg.
(4) Eight lacerated wounds 2 to 1/2 centimetre in dia. right leg.
(5) Lacerated wound right outer upper arm 1' in dia.
(6) Lacerated wound 1' dia, right forearm front.
(7) Four ecchymotic areas right shoulder blade region 6' to 4' long and il/2' broad.
(8) Two ecchymotic area 6' long 1/2' broad left shoulder blade region.
(9) Fracture right parietal bone.
(10) Fracture left both bones of the leg in upper l/3rd.
(11) Fracture left humerus mid shaft.
(12) Fracture radius and ulna right lower l/3rd.
46. In the opinion of the doctor, the deceased had died due to multiple injuries including fractures caused by blunt weapon and the cause of death in the opinion of the doctor was shock and haemorrhage.
47. The doctor, however, did not state in his evidence that the injuries either individually or collectively were sufficient to cause the death in the ordinary course of nature. The Public Prosecutor, while examining the medical witnesses in a murder trial should be careful to bring on record the opinion of the doctor as to whether the injuries in a given case were sufficient in the ordinary course of nature to cause the death of the victim or not. Where the public prosecutor fails in his duty, it causes great deal of confusion in the case and in the absence of proper opinion of the doctor, it is difficult to arrive at a positive conclusion that the injuries should be considered as likely to cause death. Whereas it is correct that medical evidence is only opinion evidence and the court has to form ifs own opinion after looking at the injuries, the importance of the opinion of the medical witness to the effect of the injuries found on the person of the victim cannot be minimised and the same is of considerable importance and assistance to the court to form its opinion.
48. The question for consideration in this case is as to what offence has been made out against the appellants. From the perusal of the medical evidence it is clear that the appellants with the common object had caused grievous injuries to the deceased. We are not satisfied from the record that the accused persons intended to cause death of the deceased. From the facts and circumstances of the case including the number and nature of injuries the weapon used and the salient features of the prosecution case it is quite apparent that the intention of the appellants was only to cause grievous injuries and not the death of the deceased. The appellants did not come armed with any formidable weapon and used sotas and stones to cause the injuries, as such, it would be safe to assume, especially in the absence of definite medical opinion that the injuries were sufficient in the ordinary course of nature to cause death, that the accused party only wanted to cause hurt to the deceased. The offence in our opinion would fall under Section 325/149, R.P.C.
49. A faint attempt was made by the learned Counsel for the appellants to argue that the accused had acted in the exercise of the right of self-defence. Support for this submission was sought from the evidence of Karamatulkli P.W. who had said that at the time of inquest, two cartridges were found from the shirt pocket of the deceased. The learned Counsel submitted that the deceased had fired at the accused and they caused injuries to him in the exercise of the right of self-defence.
50. After carefully considering this aspect of case, we are satisfied that the plea of self-defence is not available to the appellants. We have already held above that Karamatullah P.W. has definitely attempted to help the appellants and to that extent his evidence is not reliable, except this bald assertion by him that two cartridges were found from the person of the deceased, there is nothing on the record to corroborate it. As a matter of fact, from the evidence of the investigating officer and the other witnesses it transpires that no such recovery was made from the person of the deceased. There is nothing on the record from which any inference is available that the appellants acted in the exercise of the right of self-defence. The gun had been snatched from Issaq P.W. by the appellants and, therefore, the argument that it was sought to be used by the deceased has not at all impressed us.
51. We are satisfied from the record and as a result of the above discussion that all the appellants with the common object of causing grievous injuries to the deceased gave him beating and, thus, they are all guilty of offences under Section 325/149, R.P.C. The conviction of the appellants is, therefore, altered from the one under Section 302, R.P.C. to the one under Section 325/149, R.P.C. and they are each sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 200/- each. Fine on realization be paid to the heirs of the deceased. In default of payment of fine they shall have to further suffer for fifteen days rigorous imprisonment. The conviction and sentence recorded by the Sessions Judge for offences under Section 201, R.P.C. is confirmed. No separate sentence need be recorded for causing injuries to the prosecution witnesses.
52. Subject to the above modification the appeal fails and is dismissed.
53. Before parting with this Judgment, we feel constrained to note that the learned Sessions Judge has committed many irregularities in the conduct of thu trial. The irregularities, as we shall presently see, are of course not fatal to the prosecution case and are all curable under Section 537, Criminal Procedure Code but nonetheless the learned Sessions Judge should have been more careful in dealing with the case.
54. In the first place the learned Sepsions Judge ignored the provision of Section 539-B as already noticed while holding spot inspection. He also, without, any provision of law conducted some demonstration on the spot, and sought to discard the evidence of witnesses on his personal view and observations. He completely ignored the settled principle of criminal jurisprudence that a Sessions Judge is not entitled to allow his views or observations to take place of evidence. In the second place as we have noticed in the earlier part of the Judgment, the learned Sessions Judge transferred the statement of Alaf Din under Section 288, Criminal Procedure Code without even caring to see the requirements of Section 288, Criminal Procedure Code. The learned Sessions Judge also did not formally transfer on the record, the statement of medical witness, for reasons best known to him. Another very significant matter in the case is that the learned Sessions Judge after hearing the arguments and conducting the spot inspection fixed the case for orders on 18th of April, 1974. A perusal of interim orders shows that on 18th of April, 1974, the learned Sessions Judge wrote that due to rush of work the Judgment could not be completed and therefore, the file was directed to be put up for orders on 14th of May, 1974. On 14th May, 1974, also it is recorded that the Judgment is still under consideration and the file was directed to be put up on 30th of May, 1974, On 30th of May 1974, the learned Sessions Judge adjourned the case for Judgment to 13th June, 1974, saying that since he was busy in the disposal of the some other cases the Judgment could not be prepared. The same order appears on 13th June, 1974, when the case was adjourned to 3rd July, 1974. 3rd July, 1974 the learned Sesmons Judge was on leave and the file was put up for 15th oJ July, 1974, on which date the learned Sessions Judge again observed that since he was busy in other casts he could not complete the Judgment, The case was adjourned to 1st of August, 1974, when the following orders were passed:
I have started writing judgment in this case for the last five days. The judgment is very lengthy because technical points are involved in this case. It is hoped that within a fortnight this will be completed. On 22-7-1974 two lady accused Mst. Wazir Bi and Mst. Makhni were released on bail. All the accused except Wali Moh'd accused are present In the Court. The two ladies accused are also present, FP and the counsel lor the accused is also present.
While writing judgment I have come to conclusion that no case is made out under Section 302, R.P.C. against accused Faiz Hussain s/o Fazal Din (21 Kalam Din son of Shabib Din (3) Moh'd Din s/o Sahib Din (4) Ahll s/o Karam Din (5) Misri son of Faqra (6) Gulab Din s/o Ghulara Moh'd (7) Mir Moh'd s/o Bhalla (8) Moh'd Hussain s/o Bhalla (9) Faiz Hussain s/o Dil Moh'd (10) Kala s/o Sahib Din (11) Makhana s/o Sain (12) Lal Din son of Noor Din. They may be released on bail bond amount to Rs. 200/- each and surety bond of the like amount. They may be directed to attend this Court on 26th August, 1974. The accused shall continue to remain in judicial lock up and they may be produced before the court on 26th August, 1974, File shall come up for orders on that day.
55. The Judgment was then Anally delivered on 31st August, 1974, acquitting fifteen accused and convicting the rest.
56. The order dated 1st August, 1974, quoted above makes a very interesting reading and we are at a loss to understand under which provision of law did the learned Sessions Judge deliver the judgment in parts and bits. The procedure adopted by him does not reflect well and shows utter disregard for the norms of writing judgments which are required to be followed by the trial courts scrupulously. The learned Sessions Judge is expected to be more careful.
57. Appeal dismissed with above modification.
M.R.A. Ansari, C.J.
58. I agree.