Mukhtar and Daud were tried by learned Sessions Judge, Khairpur, under section 307/34. P. P. C.
Daud Shah was acquitted by giving him benefit of doubt and present appellant Mukhtar was convicted under section 307/34, P. P. C. And sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500 and in default of payment further R. I. For six months by a judgment dated 4th July, 1974. It is against this judgment that the appellant has come up in appeal.
2. The case for the prosecution is that injured who is an employee of one Jaraimdass used to work at his grass cutting machine. P. W. Ramdas, who is a boy aged about 17 years son of P. W.
Jairamdass. The complainant Allah Bux is maternal uncle of the injured Misri. He had brought the meals of Misri at about 2.30 p.m. At the grass cutting machine where Misri was working. Misri went out to make water and from outside raised cries of murder!", "murder !" whereupon Allah Bux rushed out. Wasandmal, Gulbahar, Shaban and others also came there and they witnessed that Mukhtar Sial and Daud Shah were giving hatchet blows to Misri. On their `Hakals', they ran away in a tonga along with their hatchets and Misri fell down. Thereafter came Jairamdass who took Misri in a Rickshaw, to hospital. The complainant also went to hospital after them wherefrom he came with the A. S. I. P. Syed Mushtaq Ahmad and lodged his F. I. R. Exh. 8 at Police Station Town Khairpur, on 8May, 1972.
3. The motive for the incident was that the appellant and the acquitted accused had pressed one Ramdass son of Jairamdass to keep friendship with them and Misri had reprimanded them and used to accompany Ramdass to his house. It was on account of this that the appellant and the acquitted accused getting an opportunity caused injuries to Misri.th
4. The A. S. I. P. Town Police Station, Khairpur who had earlier reached on a telephonic message at the Civil Hospital had already prepared the mashirnama of the injuries Exh. 13 on the person of injured Misri in presence of mashirs, Jairamdas and Mohammad Umar even before the lodging of F. I. R. By the complainant Allah Bux who had been subse--quently taken by the A. S. I. P. From the Civil Hospital for report at Police Station. The injured was found unconscious and was not able to give a statement. The A. S. I. P. Then proceeded to the scene of offence, which was shown to him by the complainant. He secured blood-stained earth from there and prepared such mashirnama Exh.
16 in presence of Mashirs Abdul Karim and Mohammad Ibrahim at 5-15 p. m. He then arrested acquitted accused Daud Shah on the same day at 5-45 p.m. Alongwith a blood-stained hatchet.
After investigation, the acquitted accused was challaned in the Court of City Magistrate, Khairpur, whereas the present appellant was shown as-an absconder.
5. The appellant was arrested under warrants issued by the City Magistrate, Khairpur, and had appeared for the first time in the Court on 24October, 1972.
6. To support its case, the prosecution examined eight witnesses in all, its mainstay being the ocular testimony of the injured Misri and the complainant Allah Bux. The prosecution also relied on the motive and abscondence of the present appellant. The appellant pleaded not guilty to the charge.
7. The learned Sessions Judge admitted that an attempt had been made by the P. Ws. To save the acquitted accused Daud Shah and also observed that the injured himself had been making double statements so much so that at one stage he stated that acquitted accused Daud Shah and the appellant gave him hatchet blows but again he identified the appellant Mukhtiarkar only in the Court and not the acquitted accused Daud Shah for whom he said that the other person was with a muffled face. He however accepted the evidence of the injured Misri and the complainant Allah Bux to the effect that the appellant caused the injury and on the basis of their depositions convicted the appellant under section 307/34. P. P. C.
8. The learned counsel for the appellant contends that there is con--flict of versions in the F. I. R.
Evidence of the complainant in the Court and the versions given by the injured in the committal Court and the Court of Session. He therefore contended that the evidence of the injured and the complainant was contradictory in material facts and it should not have been believed by the learned Sessions Judge, without some indepen--dent corroboration and the fact that there were two injuries on the person of the injured Misri who fell unconscious immediately after receiving them required careful examination particularly when none of the P. Ws., who were named in the F. I.
R. As an eyewitness supported the case of the prosecution.
9. There is no doubt that the injured Misri had received the following injuries:----
(i) Incised wound 5' x 1" x bone deep on left side of chest above the nipple.
(ii) Incised wound 1" x 1/8" x scalp deep on the left side of forehead, Dr. Sattar P. W. 8 at Exh. 20 certifies that both the injuries were grievous in nature and caused by a sharp-cutting weapon of such as Axe. He has also stated that the injured was received in a state of semi-consciousness and his statement therefore could not be recorded at that time. Now therefore question is whether both the injuries or any one of them was inflicted by the present appellant. It would be very necessary to discus the evidence of the injured Misri and the complainant Allah Bux before reaching any conclusion alongwith the circumstances that although others had also witnessed the occurrence but there is no corroboration coming out from any one of them.
10. I would deal with the evidence of the injured Misri in the com--mittal Court which has been brought on the record of the Court of Session under section 288, Cr. P. C. At Exh. 6 and as well as with his evidence in the Court of Session. The injured Misri in the lower Court has deposed that the acquitted accused and the appellant who were both armed with hatchets gave him hatchet blowsth on. His chest and forehead and he fell down and became unconscious. He has not specifically said as to who out of the assailants gave him blow on the forehead or on the chest. It is also not clear from this deposition, if he received the blow on the forehead first or on the chest. The injured in the Court of Session has said that one of the assailants had his face muffled while the other he identified to be appellant who gave him the blow on his chest, and he then lost his consciousness.
This specific role of inflicting hatchet blow on chest of the injured for the first time has been given to the appellant whereas the acquitted accused has been totally exonerated.
11. The complainant Allah Bux P. W. 2 at Exh. 7 has deposed that acquitted accused Daud Shah had a lathi while, the appellant had a hat--chet. He also deposed that injured Misri told him that acquitted accused Daud Shah and the appellant Mukhtar had given him blows, but there was no lathi injury according to the medical report. In cross-examination, he n has said that the assailants had their backs towards him and he would J not be able to say if their faces were muffled. He saw them from a distance of about 50 to 60 paces in a tonga which was going at a quick pace. He has also deposed in the lower Court that the names of the assailants were disclosed by one Abdul Karim. The extract of his lower Court deposition has been exhibited as Exh.
9. His version to the effect that he was told the injured that the acquitted accused Daud Shah and the appellant Mukhtar gave him the blows was contradictory to that of injured Misri, who, on the contrary was said that he fell unconscious after receiving the blows and did not even know as to who gave him a blow on his head and both of the assailants were armed with hatchets anti E the fact, that the injured at no place said that he informed about the names of the assailants to Allah Bux or any one else, was very much conspicuous. These contradictory versions of the complainant and the injured cast shadow of doubt about the presence of the complainant at the time of incident.
12. The P. W. 3, Wasandram, who is son of Jairamdass, the owner of grass cutting machine, in his deposition at Exh. 10 has stated that he could not say if complainant Allah Bux came after or before the incident and whether he saw the incident but he was standing before he came- out. This P. W.
Is one of those who has been named in the F. I. R. As an eye--witness by the complainant and has also been examined, whereas the remaining two named in the F. I. R. Have been given up. This witness has also deposed that he did not identify the persons who were running away and none of those persons present there told him that they had, identified the assailants. This evidence of P. W.
Wasandram further falsifies the presence of the complainant at the spot at the time of incident.
Secondly he does not reside near the place of incident. Thirdly he was brought from the hospital by the S. S. I. P. Who recorded the F. I. R. Of this incident. Therefore there remains only a word of the injured on which the conviction has been based. This I would discuss after my discussion on the other pieces of evidence was over.
13. The next piece of evidence is the motive on which in addition to the evidence of injured Misri and complainant Allah Bux, Jairamdass, Ramdas and Wasandmal have been examined. Out of them Allah Bux and Wasandram do not say a word about it and Jairamdass very clearly stated that he could not say as to what was the motive of the fight with Misri. The injured has been supported to some an extent by Ramdas inasmuch as he stated that when used to go to his house the acquitted accused Daud Shah and appellant Mukhtar used to ask Misri not to accompany him but at the same time he stated that about 8 or 10 days before the incident the appellant Mukhtar and some others had fought with him as they were asking him to keep friendship with them but he refused. He complained to his father and the matter was com--promised. It would therefore appear that there was no occasion to fight with the injured Misri as nothing new had happened after the abovesaid compromise. The motive even otherwise does not appeal to common sense.
14. The last piece of evidence against the appellant is that of his abscondence. The learned counsel for the appellant contends that it was not a case of abscondence because it was well-settled legal position that a person whose name was mentioned in F. I. R. Would abscond even if he was innocent to avoid unnecessary arrest and harrassment and in case he was guilty, to escape from the clutches of law. Such a conduct could be consistent with his guilt or innocence. No inference one way or the other could be drawn from the fact of his abscondence. He has relied upon an authority of this Court, reported as 1976 P Cr. L J 243.
15. The learned counsel for the State has rightly conceded this position, but has placed great reliance on the testimony of the injured, the corroborative evidence of the complainant Allah Bux P.
W. 2 and the motive for the commission of the offence.
16. Apart from the fact that the presence of the complainant at the time of incident is doubtful even the evidence of the injured Misri does not in spite confidence. It would have been safer to reply on his, evidence against the appellant if the injured had taken consistent stand. When he has completely exonerated the acquitted accused Daud Shah it would be difficult to accept his word against the appellant that he gave him the J, injury on his chest. It would not be known under the circumstances as to who hit him on his chest, particularly when he did not, give this specific role to the appellant in the lower Court and also the fact that he involved the appellant as well as the acquitted accused equally at one stage but gave goodbye to his version at a later stage. It takes me only to a con--clusion that he was not an honest man who could be relied upon for conviction of the appellant. It may be mentioned that the acquitted accused Daud Shah was arrested on the same day and within a few hours of occurrence as per deposition of the A. S. I. P. Syed Mushtaq Ahmad Shah P. W. 7 at Exh. 18 along with a blood-stained hatchet as he was alleged to have been carrying it at the time of incident with which he gave blow to the injured Misri. There are two incised injuries on the person of the injured and both could have been caused by one man. Since the person who was arrested on the same day of the incident along with a blood-stained hatchet succeeded in getting himself exonerated anti t eventually acquitted. The case of the appellant is comparatively better and his conviction in such a situation of the injured which is replete with material contradictions, would not be safe without strong and independent corroboration.
Unfortunately for the prosecution, however, there is no such corroborative evidence available on the record. As a result, the case against the appellant becomes doubtful and I therefore accept this appeal by given him benefit of doubt and acquit him accordingly. He is on bail and his ail bond stands cancelled.