Kadir vs The State
1986 Latest Caselaw 116 Del

JUDGMENT

Aggarwal, J.

1. Kadir, the appellant herein, was charged with the offence of murdering Kalu Singh. He was further charged under S. 324 of the Penal Code for causing simple hurt to Lekh Ram and Sant Singh. He was also charged under S. 27 of the Arms Act for being in unlawful possession of a knife. Shri. P. K. Bahri, Addl. Sessions Judge, who tried the case found the accused guilty of all the charges and sentenced him to imprisonment for life on the first charge and to rigorous imprisonment for two years and a fine of Rs. 200/- and in default to undergo rigorous imprisonment for four months on the second charge and to rigorous imprisonment for two years on the last charge. The substantive sentences of imprisonment were made to run concurrently. Against his convictions and sentences the accused has come in appeal.

2. There are two versions of the occurrence, one put forward by the prosecution and the other by the accused. The crucial question arises whether the prosecution version is true.

3. The case for the prosecution is this. One Pehlwan with his son and the son's wife resided in a room in the house of P.W. 12 Badal Singh. The accused Kadir resided in another room in the same house. Pehlwan suspected the accused having developed illicit relations with his daughter-in-law. Kalu deceased was a friend of Pehlwan. About three months prior to the occurrence there was a quarrel between Kalu and Kadir on his relations with the daughter-in-law of Pehlwan. Kadir vacated the house and shifted to a house in Mosque lane.

4. According to P.W. 7 Lekh Ram father of the deceased on 26th September, 1981 at about 8.25 a.m. he accompanied by his son Kalu was going in their buggi (cart driven by an ox) from their fields to) their house. When they reached at Sastri lane they found Kadir quarreling with Pehlwan. A crowd had gathered there. Kalu intervened and asked Kadir not to quarrel with the Pehlwan, upon which Kadir is alleged to have told Kalu "not to interfere". The prosecution case further is that Kadir had a knife in his hand and he attacked Kalu. Lekh Ram intervened and he received an injury on the thumb of his left hand. Kadir succeeded in giving a knife blow in the chest of Kalu. Kadir gave another blow which Kalu received on his hand, Budh Singh, Rajinder Kumar, Virender Singh and some others also reached the place of occurrence. Kadir, it is alleged, after giving the knife blows to Kalu ran towards his house in Mosque lane. He was chased by Budh Singh, Rajinder Kumar and others. The prosecution case further is that just near the house of Kadir, Kadir was overpowered and in the process of being over powered he gave a knife blow to Sant Singh who received the blow at the back of the neck. The accused, it is alleged, was beaten up by the chasers with brick-bats and lathis. The accused went inside his house and fell in the courtyard.

5. Budh Singh PW informed the police on telephone about the occurrence. Sub-Inspector Bhag Singh (P.W. 15) was entrusted with the investigation and he reached the spot. P.W. 15 saw a knife lying in the Mosque lane in front of the house of the accused. He also saw blood lying outside the house and also inside in the courtyard. Kadir was found lying injured in the courtyard. Sub-Inspector Ami Chand (P.W. 16) also joined Sub-Inspector Bhag Singh in the investigation. Kadir was sent to JPN hospital where he was examined by Dr. P. S. L. Rao (P.W. 1) who found the following injuries on his person :

(1) C.L.W. on left parietal bone 1" long.

(2) C.L.W. on occipital region 1/2" long.

(3) Probable fracture on both bones left fore-arm lower end.

(4) Probable fracture lower and femur.

The doctor declared that Kadir was not in a fit condition to make a statement.

6. Kalu was also removed to the hospital where he was declared to have been brought dead. Dr. Bharat Singh performed post-mortem on the dead body and he found the following injuries on the person of Kalu :

(1) One incised stab wound on the left side front of chest, one and a half inch medial to the left nipple placed obliquely with tail end down-words and towards the left, size of the wound was 1 1/4" x 1/2" ? covered by blood.

(2) One incised wound on the fore-left arm 2 1/2" above the wrist joint on front side, size of the wound was 1 1/2" x 1/4" x muscle deep covered by blood.

(3) Abrasion on sacral area 2" x 1" brown in colour.

7. The doctor opined that injury No. 1 was sufficient to cause death in the ordinary course of nature.

8. Sant Singh and Lekh Ram were medically examined by Dr. Mukhtiar Singh on 27th September, 1981. Dr. Mukhtiar Singh found the following injuries on the body of Sant Singh :

(1) Abrasion 1/2" x 1/4" between the wad of the middle and index finger of the right hand back surface with scab.

(2) Abrasion 1/4" x 1/4" back surface, base of the index finger of the right hand, with scab.

(3) There was linear abrasion with hard scab 1 1/4" back on the neck. It was horizontal in fashion.

(4) Abrasion 1/2" x 1/2" back surface of the right elbow joint having hard scab.

(5) Abrasion 1/2" x 1/2" on the right knee."

The doctor opined that all the injuries were caused by blunt object.

9. On the examination of Lekh Ram the following injury was found on his body :

"There was superficial cut 1/2" x 1/4" skin deep oblique in fashion. The cut flap was attached with its base to the wound. This flap was triangular in shape, on the palmer surface upper part of the thumb of left hand the ends were pointed and margins were sharp."

The doctor gave the opinion that the injury was simple and caused with a sharp object.

10. The accused in his statement at the trial admitted that he was living as a tenant in a house at Beharpur and that one Pehlwan with his son and son's wife lived in another room in that very house. The accused further admitted that there was a quarrel between him and that Pehlwan and he had given beating to him and that Kalu was supporting Pehlwan. He further admitted that after that quarrel he had left the house. The version given by the accused of the occurrence is as follows :

"I am innocent. On 26-9-81 at about 8 a.m. I and my two friends rickshaw pullers were present in my house in mosque lane and Kallu, Sant Singh, Budh Singh, Rajinder and Rajinder P.Ws. came there and at the instance of Kallu I was given beating although I requested Kallu that I should not be given beating as I had already vacated the house and Kallu tried to stab me with a knife. My two friends grappled with Kallu, and others gave me lathi and iron blows and I became unconscious. The whole occurrence took place in the room. Now I state that the occurrence took place in the courtyard. I do not know who stabbed Kallu. Those two rickshaw pullers were Sharufuddin and Rias."

11. The crucial question that arises for determination in this case is whether the occurrence took place at Sastri lane as alleged by the prosecution or in the Mosque lane in front of the house of the accused as pleaded by the accused.

12. The spot of crime was inspected by P.Ws. 15 and 16 almost immediately after the occurrence, P.Ws. 15 and 16 found blood lying in the mosque lane in front of the house of the accused as well as in the courtyard of the house. The knife was found lying near the blood in front of the house. No blood was found at the spot where Kalu is alleged to have been given the knife blow by the accused. The explanation given by P.W. 7 is that immediately after receiving the blow Kalu had stemmed the wound with his hand and, therefore, no blood fell at the spot. We are unable to accept this statement of P.W. 7. P.W. 11 Budh Singh gave evidence that Kalu had bled from his injuries at the spot and blood had fallen at that place. This statement of P.W. 11 is proved to be false by the Investigating Officers.

13. The non-finding of the blood at the spot where Kalu is alleged to have been given the knife blows, in our view, falsifies the prosecution case that the occurrence had originated in Sastri lane. The scene of crime was photographed and the photographs show big patches of blood outside the house and inside the house of accused Kadir. The injuries found on the body of Kadir were opined to have been caused with a blunt weapon. The medico legal report of Kadir does not show that the injuries were found bleeding. From the nature of the injuries received by Kadir it could reasonably be said that there could not be much bleeding from his injuries.

14. Samples of blood were lifted from both the spots inside and outside the house. We find that these samples of blood were not sent to the Central Forensic Science Laboratory. If these samples had been sent for serological examination, it would have revealed whether the blood is of the accused or the deceased, and this could further help in establishing the spot of crime.

15. We have carefully gone through the record and we are of the view that the occurrence had not taken place in Sastri lane as alleged by the prosecution and in all probability the occurrence took place in front of the house of the accused. It is possible that the deceased accompanied by Pehlwan, Budh Singh, Sant Singh, Lekh Ram and others had gone armed with lathis to the house of the accused and beaten him up and the accused may have in self defense used the knife and caused injuries to the deceased and others.

16. In the view we are taking of the evidence, we find the only safer course would be to reject the prosecution case as not proved. We, accordingly, allow the appeal and quash the convictions and the sentences of the appellant and direct that he be released forthwith unless wanted in any other case.

17. Appeal allowed.