1969 PLP 647 (SCMR)

Bahno (P. W. 3), his wife Mst. Hurmat (P. W. 4), their sons, including the deceased Ali Mohd. and Sajan P. W. 7 and Wali Mohd. P. W. 8, Mst. Sahhagi, wife of Ali Mohammad P. W. 5 and Mst. Khairi wife of Sajan P. W. 6, were living in the village of occurrence in the same house referred to in evidence as Kole. Not far from it lived Haji Ramzan with his sons Khamiso, the acquitted accused, and Achar the deceased, and Ramzan's wife's grandson appellant Kirin The other appellant Yaroo, who is also related to Ramzan's wife was living at a distance of about a mile from the locality, where the houses of Bahno and Ramzan are situated. There had been ill‑feeling between Bahno and Ramzan for a considerable time and there were criminal cases between them arising out of a dispute about irrigation. On 31st July 1948, the day of occurrence, Bhano and Ramzan with their respective partisans appeared in the evening at about 5 p. m. at Nawabshah before Ghulam Haidar Shah, P. W. 10, under whom they were all once working for a decision of their dispute, but no settlement could be effected. On the other hand the parties came to blows and complained against each other at the Nawabshah Police Station. Thereafter, at about 7 p. m. the occurrence, to which this appear relates, took place. In this occurrence Ali Mohd sustained five grievous injuries, one of which cut through the vertebral column severing the spinal chord and he died at the spot. Sajan sustained five incised wounds and one contused wound and had to remain as an in‑patient in the hospital for about 36 days. On Achar there were three injuries, the most serious of which has been described as follows :‑ "An incised wound 12 x 3" deep to the pleural and peritonial cavities along the outer aspect of the left side of the chest and abdomen cutting completely the lower eight ribs underneath with protrusion of the omentum at its lower part." He was taken to the hospital, where he died the next day. Before his death his dying declaration, to which reference will be made later, was recorded. The version of this occurrence as presented by the prosecution was to the following effect :‑ Ali Mohd. and Sajan had not gone to Nawabshah that evening but on the other hand they were working in their fields. Seeing the appellants and Khamiso and Achar coming towards them armed with hatchets, they ran into their Kole and their mother bolted the door, but the appellants, Khamiso and Achar broke the door with hatchets and entering the Kole struck Sajan (P. W. 7) with hatchets and he fell down. They then struck Ali Mohd. who in self‑defence struck Achar. The assailants then went out and Ali Mohammad was hidden by his mother in a basket. The assailants returned five minutes later without Achar and dragged Ali Mohammad out of the house into the fields and there while appellant Kirir sat on his chest and Khamiso held his legs, appellant Yaroo slaughtered him. Not satisfied with what they had done so far, they dragged the body of Ali Mohammad further away into the fields. Mst. Hurmat P. W. 4, who saw the latter part of the occurrence at close quarters, while returning to the Kole 'met one of her sons Wali Mohd. P. W. 8, who was then coming home from his work and told him about what had happened, and he then went to Nawabshah and gave the information to his father Bhano, who instead of making a report at the police station came home and then going back to Nawabshah lodged the first information with the police at 11 p. m. that night. The version of the appellants and Khamiso was that they had not gone to Nawabshah that day, that they were not present at the occurrence, but that they had been falsely implicated. No evidence was adduced for the defence but it was contended on behalf of the accused that the occurrence took place not inside Bhano's Kote, but outside in the fields. The dying declaration of Achar, was to the effect that he was returning that evening from Nawabshah after seeing Ghulam Haider Shah, P. W. 10, followed by Kirir and Khamiso, that Ali Mohd. and Sajan were then standing in his cotton field armed with hatchets, that there was an exchange of abuse between them and him, which was followed by exchanged of hatchet blows, and that Kirir and Khamiso then carried on to his house. From Sajan P. W. 7 a statement had been recorded by a Magistrate and this statement did not fully accord with the version of the eye‑witnesses including Sajan given in their evidence. The Public Prosecutor objected to these statements being taken into consideration. Achar's dying declaration, it was argued, was not admissible because he could not have appeared as a witness even if he had lived and the objection to the statement of Sajan was that the original had not been produced. The defence had produced only the copy given to them. These objections were upheld by the Sessions Judges, who in assessing the value of the evidence of the eye‑witnesses ignored these documents. He believed those witnesses and convicted and sentenced the three accused as stated above. The learned Judges of the Chief Court rightly held that these statements should have been considered in assessing the weight of the evidence in the case. They took the view that as the cause of Achar's death was an essential part of enquiry in this case, his dying declaration was clearly admissible and deserved the most carefully consideration. As regards the statement of Sajan they found that the original was not made available to the defence, although they had asked for it and that there was no doubt about the accuracy of the copy, which the defence was supplied with which they had placed, on record. Constantine, J. considered that these two statements were of great importance and he was of opinion that the conclusions of trial Court on the merits of the case should be disregarded, as in reaching them these documents had not been taken into consideration. The learned Judges, however, differed with regard to the value of these statements. Tyabji, C. J. took the view that as there was no evidence that there was blood in the cotton fields of the appellant, where according to Achar's statement the attack was made, the version in that statement was not true. But Constantine, J. observed that the mere absence of blood at that spot did not make the statement false, as there was nothing in evidence to show that the police inspected that site to see if there was blood there. As regards the statement of Sajan, Tyabji, C. J. observed, "It is in truth an incoherent hotch‑potch together with a mixture of great deal, which was entirely false, some of which may or may not be due to a temporary delusion due to his physical condition". The learned Chief Judge held that the question v. Nether Sajan's evidence at the trial was true or not should not be decided with reference to his earlier statement. Constantine, J, on the other hand was of the view that having regard to the certificate of the Doctor that Sajan at the time he made his statement was in his proper senses it could not be assumed that his mind was wandering or he was subjected to hallucination when lie made the statement. He observed, "It is true that the first information gives more or less an orthodox account of incident, but Sajan may as well be doing some independent thinking to the story, which was exonerating him and confused it with the story, which he was tutored to give". With regard to the women witnesses, whose presence in the Kote at the time of occurrence was considered to be natural the learned Judges rejected their version in several particulars. They disbelieved the evidence that Sajan and Ali Mohd. Took shelter in the Kote, even before they were injured and that it was Ali Mohd. who caused the fatal injury to Achar. They rejected also the evidence of Mst. Hurmat that she followed the assailants when they dragged Ali Mohd. from the Kote and saw from close quarters Ali Mohd. being slaughtered in the field and his body being dragged away. The story that the assailants left the Kote after causing injuries to Ali Mohd. and Sajan and returned after an interval of five minutes, was regarded as wholly unbelievable. The learned Judges, nevertheless, did not reject the entire evidence. They considered that the evidence of the eye‑witnesses that the assailants chased Sajan and Ali Mohd. into Kote and caused injuries to them there could be accepted, although they were not prepared to hold that the actual attack started inside the Kote. Tyabji, C. J. took the view that Ali Mohd. had sustained; an injury before he entered the Kote; that thereafter it was Sajan, who struck Achar in the Kote that Sajan was then struck by the assailants with hatchets and was disabled and that the eye‑witnesses shaped their evidence to save Sajan from the liability for the injury on Achar, which proved fatal. Constantine, J. on the other hand was of opinion that the incident started as described in Achar's dying declaration and that Achar's party entered the Kote by way of retaliation for the injuries inflicted on Achar, These theories were based not on the evidence, which is clearly to the opposite effect, but on the opinion that both the learned Judges shared that the presence of a pool of blood inside the Kote, blood on the walls and the basket and a trail of crushed cotton plants leading to the spot, where Ali Mohd's body was found, afforded strong circumstantial evidence proving the main features of the prosecution case, namely that the assailants entered the Kote, caused injuries to Sajan and Ali Mohd. and dragged the latter out of the house. Having come to this conclusion the learned Judges did not doubt that the women witnesses could see the assailants, but in view of the serious defects in their evidence, they decided to act on it only if there be corroboration in respect of the individual accused. As there was no circumstantial evidence like the recovery of blood‑stained cloth or hatchet from Khamiso and as the case against him depended mainly on the evidence of the eye‑witnesses, they acquitted him giving him the benefit of doubt. As regards the appellants, they found that seizure of a shirt from appellant Kirir and of a hatchet from appellant Yaroo, both of which, on chemical analysis, were found to be stained with human blood, was a sufficient corroboration of the evidence of the witnesses against the appellants, and they, therefore, dismissed their appeal. The learned Judges appear to have proceeded on the basis that there were such extensive blood‑stains inside the Kote that they could not be accounted for by the circumstance that Sajan lay there with five incised injuries till a late hour in the night when the police came and sent him to the Hospital. Constantine, J. observes, "There was a quantity of blood inside the Kote including the walls, which, in my opinion, cannot be explained otherwise than on the hypothesis that blows were dealt inside the Kote. One would not expect to find such stains, if persons injured outside had merely taken refuge inside the Kote". But as pointed out by the counsel for the appellants, the learned Judges overlooked the fact that there was no definite evidence that there were extensive stains and that from the spot, where according to the witnesses there were pools of blood, earth was scraped and sent up for chemical analysis. In the Mushirnama drawn up with regard to the recoveries from the Note, the size of the blood‑stains is not indicated. It is not stated whether what appeared to be blood stains were extensive or only small in size. It is significant that the Mushirnama states `under the shade due to the rain there was no foot‑prints test . . . . there were no prints in the field due to rain; If there was rain after the occurrence, then ever small stains of blood might well have appeared to be extensive. However, the Mushirnama does not say that the stained‑earth was scraped. There is nothing in the evidence of the Investigating Officer to show that he had the stained‑oarth of the stains on the wall or on' the basket scraped for sending them for chemical analysis. On the other hand, Jani P. W. 12 one of the attesters of the Mushirnama‑has stated that the police did not scrap the blood‑stained earth from Bahno's house of anywhere else but that blood‑stained rags were collected any thrown into the basket along with a blood‑stained spade. According to the report of the Chemical Examiner on record, two shirts, two hatchets and a loin cloth were subjected to chemical analysis, but these articles relate to the recoveries from the appellants and not from the Kote. Our attention has not been drawn to anything on the record showing that either the basket or the blood‑stained portion of the plank of the door was sent to the Chemical Examiner or that what appeared to be blood inside the Kote was on chemical analysis found to be human blood. In this state of evidence it cannot be said that it was established that there were such extensive stains of human blood inside the Kote that they could be explained only on the hypothesis, stated by Constantine, J. namely, that blows were dealt inside the Kote. The possibility of the entire occurrence having taken place outside in the fields, as indicated by Achar's dying declaration, cannot therefore reasonable be excluded. There must, no doubt, have been some human blood in the Kote, for Sajan was admittedly lying there with injuries till a late hour in the night when the police came and sent him to the Hospital. Even if the stains noticed by the witnesses on the basket are assumed to be of human blood, that by itself cannot be regarded as corroboration of the story of the eye‑witnesses that Ali Mohd. after he was injured was hidden inside that basket as the blood‑stained rags were collected and thrown into the basket, and that might have produced the stains seen on it. As regards the trail of crushed cotton plants, to which the learned Judges attached importance, that circumstance by itself does not advance the case for the prosecution, for such a trail could be produced by any heavy object having been dragged along the plants. The trail would have been of considerable importance, if it had been satisfactorily proved that there was such a large quantity of human blood inside the Kote that the evidence of the eye‑witnesses that the hatchet blows were dealt inside it could be considered as having been established beyond doubt; but for reasons stated above we think that such a conclusion cannot be reached on the evidence in this case. It appears to us that had the learned Judges considered this aspect of the matter, they also would have arrived at the same conclusion. In this view the evidence of the women witnesses, who at the time of occurrence were inside the Kote, is of no value apart from the fact that the learned Judges doubted the truth of their testimony in several important particulars, for, if the occurrence did not take place inside the Kote these women could not possibly have seen what happened. As regards the evidence of Sajan, who must have been aware of what really happened, the learned Judges, themselves were not prepared to rely on it without corroboration. What remains therefore is only the evidence of recovery of a shirt from Kirir and a hatchet from Yaroo, both of which were found to be stained with human blood. These recoveries be themselves, without any reliable evidence as to how the occurrence took place, cannot be regarded as evidence establishing the case against the appellants beyond all reasonable doubt. In the circumstances of the case these recoveries are not inconsistent with the innocence of the appellants. Achar having been seriously injured in the very occurrence, in which the appellants are alleged to have participated, Kirir's shirt might well have got blood‑stained when he carried him. The only evidence apart from that of the eye‑witnesses in respect of Kirir is the dying declaration of Achar, where he has been mentioned as one of the persons, who carried Achar after he was injured; but that statement does not say that appellant Kirir participated in the fight. As regards Yaroo, the dying declaration does not mention him at all. On the other hand, Khamiso is mentioned there as one of the persons, who carried Achar, after he was injured. It has not been established that the blood‑stained hatchet recovered from Yaroo belongs to him or that Achar used in the occurrence, hatchet other than the one recovered from Yaroo. These recoveries, by themselves, even put at the highest can raise only a suspicion against the appellants, but suspicion, however, strong, cannot be made the basis of a conviction. The result is that, as contended for the appellants, this, in effect, amounts to a case of no evidence. We, therefore, allow the appeal, set aside the convictions and sentences imposed on the appellants and acquit them. They shall be set at liberty forthwith. Appeal accepted.