1. Appellant above named, being aggrieved by judgment, dated 15th October, 1977 of the learned 1st Additional Sessions Judge, Hyderabad, to Sessions Case No. 502/76, by which appellant has been convicted under sections 457 and 307, P. P. C. And sentenced to suffer R.
1. For 3 years under section 457, P. P. C. And R. I.
2. For 5 years under section 307, P. P. C. And also directed to pay fine of Rs: 1,000 or in default to suffer further R.
3. I. For 6 months (both substantive sentences to run concurrently) and has further been directed to pay compensation of Rs. 500 to each injured P. Ws. Wikiyo and Khair Muhammad, has preferred the above appeal on the following facts and grounds :- The prosecution story, in brief, is that about 2/3 years, ago, on 8th June, 1975, complainant Ahmed was sleeping in his house when at about 2-30 a. m. He woke up on barking of dogs and saw two persons, standing in the courtyard of his house. He did not know them before. He challenged them. One of them threw "Ghobata" which did not hit him. He raised cries and on his cries, Vikio, Khair Muhammad and Ghulam came running. All of them tried to catch hold of them. Both the assailants gave hatchet and Lathi blows to Vikio and Khair Muhammad in consquence of which they were injured, but they succeeded in overpowering the culprits there and then on the spot. They made enquiries from them about their names. The present appellant disclosed his name as Muhammad Bux, while the absconder disclosed his name as Dosu. They snatched Lathi and hatchet from the appellant. The appellant were in custody of Gbulam and others at the wardat. The injured were also lying there. The complainant came to Police Post Giddu, where he lodged the report, which was recorded by the police in Daily Diary.
4. On 8th June, 1975, Mr. Zaheer Hussain, was A. S. I. P. Incharge Police Post Giddu. At about 4-40 a. m., complainant Ahmed came to lodge report which he recorded in the Daily Diary. He accompanied the complainant to the wardat and visited the same in presence of Mashirs Ghulam and Shafi Muhammad. The wardat was situated in the house of the complainant Ahmed, in Giddu Mohalla, Hyderabad. One hatchet and one Ghobata were lying at the wardat. He secured the hatchet and Ghobata in presence of same Mashirs and prepared such mashir--nama as Exh. 10-B. Appellant Muhammad Bux and absconder Dosu were also at the wardat in custody of prosecution witnesses. He arrested the appellant in presence of same mashirs and prepared such mashirnama Exh. 10-C. He also prepared mashirnama of injuries on the persons of injured Vikio and Khair Muhammad who were at the wardat, in presence of same mashirs as Exh. 10-C. He referred both the injured with a letter and also the appellant to L. M. C. Hospital for examination, treatment and certificate. He examined P. W. Ghulam at the wardat. He sent copy of the report Exh. 10-A to the Police Station Latifabad, for incorporating it. In 154, Cr. P. C., book which was recorded by Asstt. S. 1. P. Anwar. He then handed over investigation papers in this case to S. H. O. Zaffarali Rajput, who challaned the appellant in the Court of IV-Extra Joint Civil Judge and F. C. M., Hyderabad, who forwarded the said case to trial Court.
5. The prosecution examined Muhammad Ibrahim (Exh. 6) Ahmed (Exh. 7), Vikio (Exh. 8), Khair Muhammad (Exh.
6. 9), Ghulam (Exh. 10) and Zaheer Hussain Asstt. S. I. P. (Ex. 12), in support of its case. The deposition of Dr. Muhammad Siddiq recorded in the lower Court was brought on record, under section 509, Cr. P. C. As (Exh. 11).
7. The prosecu--tion subsequently closed its side on 22nd September, 1977.
8. The appellant was examined under section 342, Cr. P. C. And he denied the allegations of the prosecution and regarding his injuries, stated that he has sustained these injuries as he was beaten by the police. He further stated, that he is a milk seller and resides at Natri. On 7th June, 1965 he was required to appear in the Court of Civil Judge and A. C. M., Hyderabad, in case State v. Hakim and others. On that date he was arrested by the police in presence of Saffar, Shahdad and Mitho, when he came out of the Court premises. He protested and resisted his arrest, but the police had forcibly taken him away from the Court premises and challaned him falsely in this case. He was not present at the wardat nor he had caused any injury to anyone. The prosecution witnesses and the police have falsely implicated him in this case. The appellant led no evidence in his defence, although called by him.
9. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as herein before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
10. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That all the prosecution witnesses are interested and prosecution failed to examine any independent prosecution witnesses and consequently no reliance can be placed on their statement, without independent corroboration.
(b) That there are material contradictions inter se between the state--ment of the prosecution witnesses and as such no reliance can be placed on such statement, without independent corroboration.
(c) That F. I. R. Was admittedly lodged at 4-40 a.m., but according to medical certificates, the prosecution witnesses were sent for medical examination and. In fact examined by the medical officer at 3-55 a.m. And as such great doubt is thrown on the honesty of the investigation agency, in respect of the case in question.
(d) That appellant had injuries on his person and in fact he was examined by the medical officer, but this fact, that appellant had injury on his person is not mentioned in mashirnama of his arrest nor in the F. I. R. And consequently no reliance can be placed on the statement of the prosecution witnesses as well as police investigation in question.
(e) That all the injuries received by both the prosecution witnesses are simple and as such the question of appellant having intention to murder these P. Ws. Does not arise, and consequently the conviction of the appellant under section 307, P. P. C. As well as under section 457, P. P. C. Cannot be maintained.
11. The learned Advocate appearing for the State at the outset submitted, that although he was supporting the conviction of the appellant on merits, but the offence committed by the appellant in view of the facts and circumstances of the present case and the medical certificate, would fall under section 323, P. P. C. Only and as such the sentences awarded to the appellant may be reduced accordingly.
12. The prosecution witnesses examined in this case no doubt are interested and inter-related, but in the absence of any enmity alleged against them. I see no reason to disbelieve their statements, which I find straightforward and convincing. The contradictions inter se in the statements of these prosecution witnesses are not such as to discard their statements completely. The discrepancy in the time of recording of F. I. R. An the medical examination of the injured persons, in my opinion could be an honest mistake and does not effect the honesty of investigating agency, a alleged by the learned Advocate for the appellant. The none-mention of the injuries on the person of the appellant, in the mashirnama of his arrest by itself does not adversely effect the prosecution case, as the appellant immediately sent for medical examination and treatment.
13. However, since the injuries received by both the P. Ws. Are simple and as such the question of appellant having intention to murder these P. Ws. Does not arise ipso facto, as l find nothing on the record to suggest that the appellant had intention to murder the P. Ws, in question and consequently his conviction under section 307, P.
14. P. C. Was not justified, as in my opinion the offence committed by the appellant would fall under section 323, P.
15. P. C.
16. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from Section 307, P. P. C. To one under sec--tion 323, P. P. C. And consequently reduce his sentence from 5 years' R. 1 to one year and maintain his conviction under section 457, P. P. C. But reduce the sentence of 3 years' R.
1. Imposed by the impugned judgment to 1 year's R.
1. Only. I further direct that the appellant shall pay fine of Rs. 1,000 under section 324, P. P. C. And in default of payment of said fine to suffer further R.
1. For 6 months and he shall also pay compensation of Rs. 500 to each of the injured P. Ws. Vikio and Khair Muhammad and in default of payment of the said compensation to suffer further R. I. For 3 months on each account. I, further direct, that the substantive sentences awarded to the appellant under sections 457 and 324, P. P. C. To run concurrently.
17. I further direct, that the benefit of provisions of section 382-B, Cr. P. C. Be given to appellant, in respect .Of period of his detention as under trial prisoner, towards his substantive sentences, in addition to all other remissions to which he may be entitled, in accordance with rules. Appellant is on bail, which is hereby cancelled.
18. Learned trial Court is directed to issue non-bailable warrants for the arrest of the appellant and on his arrest to remand him back to judicial custody to serve out remaining sentences awarded to him by this, judgment.