1969 PLP 354 (SCMR)

Date of hearing : 24th February 1954. CORNELIUS, J.‑This appeal by special leave has been preferred by one Buta from his conviction under section 326, P. P. C. and sentence of imprisonment. Buta was one of six accused persons who were placed on trial on charges under section 148 and sections 326 and 325 read with section 149, P. P. C. The injured person in the case is one Muhammad Khan and it has been found as a fact that he was beaten at 9‑30 p. m. on a dark night, at a place in the open, inside a field belonging to the appellant Buta. The prosecution story was that Muhammad Khan and three others of his party, were at the time engaged in driving back from a cattle pound some 38 heads of cattle belonging to them which has been impounded earlier in the day by the men of Buta's party. It was the prosecution case that the accused persons, knowing that Muhammad Khan and his men would be returning from the cattle pound, lay in wait for them in Buta's field, and there made a surprise attack on Muhammad Khan. The defence case was that when Muhammad Khan and his companions were returning from the cattle pound with their cattle, the time being after dark, they saw Buta by himself in his field, and out of revenge, they at once made an assault on him, and he fled for his life raising an alarm. In consequence of the alarm, a number of persons in the neighbouring fields were attracted and joining together, they offered resistance and succeeded in overpowering Muhammad Khan. When they discovered who he was, they desisted from further beating. The relation between the parties was such that the trial Magistrate found it impossible to rely upon the evidence of the posecution witness for establishing the identity of the assailants with any certainty, although he believed that the prosecution version was the true one. The Magistrate found no corroboration of the evidence of the prosecution witness against any accused person other than Buta, and accordingly acquitted them. As regards Buta, he declared that "the injuries on the person of Buta establish beyond doubt that he was one of the assailants". He dealt at the same time with Buta's version of the occurrence which was given in answer to a question worded as follows :‑ "How did you receive the injuries?" and in reproducing Buta's answer in the judgment, included a statement that lie "received some injuries and saved himself by running away from the spot." This being the foundation for Buta's conviction, when he appealed to the Sessions Judge, it was pointed out on his behalf with emphasis that there was no proof of Buta having received any injury at all. Nor did he, in his statement under section 342, Cr. P. C. admit having received any injury. Consequently, the ground on which the Magistrate had held Buta's participation to be proved disappeared. This argument was rejected by the learned Sessions Judge on the following ground :‑ "The conviction of the appellant is not based solely on the convict's statement. It is founded on the prosecution testimony coupled with the statement of the accused in which he admitted his presence at the time and place of the incident. The argument of Hakeem Chiragh Ali, Advocate, who appeared for the complainant was that the prosecution bad not to prove the prese nce of injury mark on the person of Buta. It was his presence at the occurrence which had to be proved. If he admits that he was present, the necessity for the prosecution to produce the necessary evidence in this regard is done away with. In my opinion the trial Magistrate justifiably regarded the above‑mentioned part of the appellant's statement as affording the necessary corroboration of the prosecution testimony and it rightly convicted the appellant." A revision petition to the High Court having been summarily dismissed, Buta sought and obtained special leave from this Court to appeal from his conviction. It has been strongly pressed by the learned counsel on his behalf that Buta's admission of presence on the spot must be taken in) conjunction with the rest of his version, and this version does not include any possibility of a clash between Buta and any of the complainant party. If there had been an injury, such a clash might have been inferred, and in that case, Buta's explanation might have been regarded as inadequate to meet the inferences based upon the prosecution evidence coupled with his admission of presence. In the absence of injury, his mere presence on the spot could not be held to support the prosecution witnesses when they said that he joined in attacking Muhammad Khan. Moreover, Muhammad Khan himself did not attribute any specific blow to Buta, and since he was able to specify what blows he received from three other accused persons, his mere statement that "the rest of the accused persons" also joined in beating him was not sufficient as an assurance that Muhammad Khan did identify Buta. The reply for the Crown was that Muhammad Khan's statement in which the second blow was attributed to Sadiq which two other witnesses said had been delivered by Buta, may have been incorrectly recorded. For the rest, reliance was placed upon the argument which found favour with the learned Sessions Judge. It seems clear that the learned Magistrate misdirected himself in regard to the corroboration in the case of Buta, by the erroneous assumption that he bore injuries on his person. Injuries would undoubtedly establish that Buta came into close contact with the complainants' party, but on this point, it is necessary to note that Lai (P. W. 2) in one of his statements clearly admitted that no one of his party beat Buta. If contact between Buta and the complainants' party be excluded, Buta's admission of presence on the spot, which is after all in his own field, is clearly no indication that he joined in the beating of Muhammad Khan. This is emphasised by the consideration that the other assailants of Muhammad Khan are expressly held to be unidentified. It follows that the only evidence which is available to show that Buta joined in beating Muhammad Khan is that of the prosecution witness, which the Magistrate found was by itself nut sufficiently strong to sustain the conviction of any of the accused persons. The learned Sessions Judge does not appear to have placed any greater reliance upon the prosecution evidence than the trial Magistrate did. Consequently it becomes apparent that in convicting Buta there has been misapplication of a correct principle adopted by the trial Court, on account of a misconception on a point of fact. The circumstance which has been regarded as corroboration of the prosecution evidence is, in fact, no corroboration at all, in the necessary sense. The principle which led the trial Court to acquit the remaining accused persons applies with full force to the case of Buta as well. We accordingly allow the appeal and acquit Buta. Appeal accepted.