1943 PLP 2276 (MLD)

(i) That the F.I.R. was lodged with a delay of four days and the possibility of false implication of the accused cannot be ruled out. (ii) That the occurrence is of night time and therefore identification of the accused is not free from doubt. (iii) That two independent witnesses Allah Ditta and Phullay Khan have not supported the prosecution case and therefore it is not safe to rely upon the evidence of remaining witnesses without independent corroboration. (iv) That accused had no intention to commit any offence or had made preparation for causing hurt to any person and therefore no case under section 451 or 452, P.P.C. is made out against the accused.

5. The learned counsel for the State submitted that there is nothing wrong with the conviction and sentence of the petitioner and the same is not liable to be interfered in revision.

6. The occurrence took place in the night between 18/19 August, 1983 and the report was lodged on 22‑8‑1983. The explanation offered for the delay in lodging the report is that father of accused had been making efforts to patch up the matter but the complainant did not agree and on 22‑4‑1983 she alongwith her uncle approached the concerned police for registration of case. It is not unusual in the village society to compel each other for patching up such matters without the intervention of police. The accused must have been making efforts to compel the complainant not to report the matter to the police and thus delayed the registration of case. If it would have been a cooked story the complainant could easily make it an occurrence of preceding night but it appears that the complainant had disclosed the facts in most natural way. The delay in lodging the report therefore has no material effect and is not fatal to the prosecution case.

7. The contention of the learned counsel that the occurrence being of dark night, the identification of the accused becomes doubtful is without any substance for the reason that defence has not seriously put any question to any witness about the mistaken identification of the accused and his substitution with unknown culprit. The evidence of the identification of accused in the light of lantern who was otherwise known to the P.Ws. remained unchallenged. The identification of the accused therefore cannot be doubted.

8. The contention that Allah Ditta and Phullay Khan P.Ws. did not support the prosecution case which made the evidence of remaining eye witnesses also doubtful has no force for the reason that the P.Ws. reached at the spot only on the alarm of the ladies otherwise they could not be expected to be present at the spot at the relevant time. Thus the evidence of inmates of the house who are not inimical to the accused cannot be doubted by reason of this fact that these two P.Ws. did not support the prosecution case. The record does not indicate that either the prosecution or the defence was provided an opportunity to cross‑examine P.W.1 and P.W.2 who were not formally declared hostile and cross‑examined by the prosecution as such. The defence also did not cross‑examine them and further did not make any request in this behalf till the conclusion of the trial. It appears that the defence intentionally avoided to cross‑examine the witnesses for the reason that they did not say anything against the petitioner and petitioner did not want to lose by cross‑examining them what he had gained from their examination‑in‑chief. The statements of these two P.Ws. therefore cannot be read in evidence and is of no use to either side. Moreover the exclusion of the evidence of these two witnesses neither prejudices the case of the petitioner nor is fatal to the prosecution case. This being the position the evidence of the remaining eve‑witnesses is not affected and cannot be doubted.

9. The argument that the petitioner was not prepared to cause hurt and had no intention to commit an offence therefore no case under section 451 or 452, P.P.C. is made out is also devoid of any, force. The accused armed with Chhurri trespassed into the house of complainant was in fact prepared to cause hurt. Mere fact that he brought out Chhurri only when P.Ws. tried to apprehend him is no ground to suggest that he entered into the house having no intention to commit an offence or to cause hurt. In fact the petitioner having the knowledge of absence of P.W.3 from the house during the night of occurrence armed with deadly weapon entered into the house with intention to commit an offence.

10. The accused only produced defence evidence with regard to his character and that he having weak eye‑sight could not move in the night and therefore his presence at the spot in the mid‑night is not possible. He has not taken any particular defence with respect to false implication in the case.

11. The eye‑witnesses in the present ease have categorically supported the prosecution case with no material contradiction and discrepancy. They corroborated each other on all material points. The accused was previously known to them and was identified by them at the spot in the light of lantern. The P.Ws. have no previous enmity against the accused. The defence also could not disclose any valid reason for false implication or substitution of the accused. There is no reason to disbelieve their evidence.

12. For the foregoing reasons, I hold that the prosecution has successfully brought home the guilt of the petitioner beyond all reasonable doubt and the C conviction of the petitioner under section 452, P.P.C. is upheld and sentence awarded to him is maintained. However, the petitioner shall get benefit of section 382‑B, Cr.P.C. The revision petition fails and is dismissed accordingly. The petitioner shall be taken into custody forthwith and sent to jail to undergo his remaining sentence. N.H.Q./A‑453/L Revision dismissed.