The appellant herein was convicted for an offence under section 457, P. P. C. Of lurking house trespass by night to commit theft: By the judgment dated 22nd August, 1979, he was sentenced by the learned III Additional Sessions Judge, Hyderabad to suffer imprisonment for 5 years and also to pay a fine of Rs. 500 in default thereof, he was to undergo further imprisonment for 6 months. He bas appealed against his conviction and sentence through the Superintendent, Central Prison, Hyderabad.
3. The brief facts of the prosecution case are that at mid-night, the complainant Jumo, his father, Ali Bux and their womenfolk, were sleeping in their house when the complainant heard the noise of breaking of the handle of the door of the house. He got up and saw two persons untether--ing their bullocks. It was about 2 a.m. He challenged them. They tried to run and escape, but he caught hold of the appellant. The other person inflicted lathi blows on the arm of the complainant. On com-- motion, Ali Bux, father of the complainant also go up and rushed to rescue the complainant. He was given lathi blows by the second person. Ali Bux asked the complainant not to release the appellant, who was caught by him. The second person then gave blows, with the sharp, as well as, backside of the hatchet to Ali Bux on his forehead and shoulder, causing the fracture of the shoulder bone. On their cries, the villagers from the neighbourhood came running. P. W. Mitho was one of them. The appellant was caught and detained at the spot; whereas his associate succeeded in escaping. The complainant reported the matter to the police at P. P. Shahpur and lodged the F. I. R. Exh. 7 at 5-30 a.m. The police reached the vardat and secured the appellant and arrested him. The Vardat was inspected. Blood-stained earth, iron `Ramba' were also taken in possession. The complainant and his father Ali Bux had injuries on their person which were noted in the Mashirnamas. Their shirts were found blood-stained, which were seized. The untethered bullock was also secur--ed. Statements of the injured Ali Bux and Mitho, who was present were recorded by the Police. The injured were sent to the M.O., Rural Health Centre, Tando Jam for examination and certificate. After completing the investigation, the case was challaned in the Court.
3. Dr. Jhamandas M. O. Rural Health Centre had examined the injured Jumo and his father Ali Bux and found the following injuries.
Jumo.
(1) An incised wound 1 x --" bone deep over right side of centre of forehead.
(2) An incised wound --" x 1/6" skin deep just above medial end of left eye-brow.
(3) An incised wound --" x 1/6'' skin deep just near the lateral of Injury No. 2.
(4) A contusion 3" x 1" over back of middle of right forearm. All injuries were simple in nature. Injuries Nos. 1, 2 appeared to have caused by sharp cutting weapon such as knife, Injury No. 4 appeared to have been caused by blunt substance. The age of injuries may be 12 to 24 hours.
Ali Bux:
(1) A carved incised wound 1'' x 1 /8" skin deep over left temple.
(2) A lacerated wound --" x 1/6" bone deep over left cheek.
(3) A contusion 2''x 1" over middle of left clavity H.
He was referred to L.M.C. Hyderabad for X-Ray for skull and face left clavical. Nature of the injury were reserved for receipt of the said report.
Injury No. 1 has been caused by sharp cutting weapon such as hatchet and Injuries Nos. 2 and 3 had been caused by blunt substance. The age of the injuries were 12 to 22 hours.
4. The case of the appellant was a simple denial of the prosecution case. He further stated that the case was false and was foisted at the instance of one Achar and others. He asserted that he was taken by the police from his Village, one day prior to the date of incident. Achar was with the police, who had come in a jeep. He was taken to the P. P. Shahpur and on the next day was involved in this case. He alleged enmity with Achar over agricultural lands, as well as with Sahib Khan retired Sobedar. He further stated that he was involved in a murder case previously by Achar, in which he was acquitted and Achar had taken away his were, about which he had reported the matter by lodging the F.I.R. Exh. 23.
5. Against the appellant there is ocular evidence of injured P. Ws. Jumo complainant, his father Ali Bux and one Mitho who had come on cries. The medical evidence has supported the injuries on the person of complainant Jumo and his father Alt Bux. Lastly, is the circumstantial evidence of the appellant having been caught at the spot at about 2 a.m. Soon after mid-night when people often fall deeply asleep.
6. The ocular evidence consists of the two injured eye-witnesses com--plainant Jumo and his father Ali Bux. They were present in their own house at the time of alleged occurrence and were natural witnesses. Both of them are consistent in their versions. They were sleeping in their house and their bullocks were tethered nearby in the same house. Complainant Jumo were up first on the noise of breaking of the handle of the door. He saw the appellant accompanied by another person.
They were inside the house and were untethering a bullock. He got up and challenged them. They tried to run and escape, but he succeeded in catching hold of the appellant. His companion inflicted blows on the arm and head by means of a lathi and some sharp-edged weapon like a knife. On commotion, when his father Ali Bux got up, he rushed to assist the appellant, but was given blows by same person on his head and shoulder. On their cries P. W. Mitho had also reached there. In the meantime the companion of the appellant had managed his escape, but the appellant ",as appended. The version of the two injured eye-witnesses is natural and their presence at the vardat cannot be doubted. They were present in their own house and they had received injuries at the hands of the appellant who had escaped. In his statement P. W. Mitho has fully supported the complainant and his father. Nothing of substantial nature has been brought out, in the cross examination of these witnesses to discredit their testimony. They are therefore true and reliable witnesses and no hostility or enmity has been brought on the record to suggest false implication of the appellant, who was caught at the spot at an odd hour of the night.
7. The medical evidence supports the version of the complainant Jumo and his father, as regards the nature of the injuries, the weapon used and also the time, when the injuries were caused. It is true that the injuries were attributed to the companion of the appellant, and not the appellant himself but the circumstance of receipt of the injuries cannot be denied.
8. Lastly, is the circumstantial evidence of the appellant being caught at the spot soon after mid- night. There was blood at the Vardat and clothes of P. Ws. Jumo and Ali Bux were blood stained, A 'Ramba' which is a sharp-pointed iron rod and could be used for breaking open the locks of the door, as well as, weapon of assault. The Mashir Leemo and the Police Officer Barkat Ali, who had recorded the F. I. R. And had arrested the appellant and secured the articles have supported the prosecution case.
The version of the appellant about his enmity with Achar has no bearing on the merits of this case, nor Achar has been shown to have had any connection with the complainant and his father,
10. The conviction of the appellant is accordingly maintained under section 457, P. P. C. As he had not caused the injuries. Since the appellant had remained in custody throughout, Mr. A. A.
Dareshani appearing for A. G for the Sate, agree that it would meet the ends of justice, if the sentence is reduced to two years and the same fine is maintained. With this modification in the sentence, which is reduced from 5 years to 2 years and the same order of payment of fine is maintained. The appeal is otherwise dismissed.