Find a Lawyer

Criminal Acquittal Appeal No. 351 of 1973, decided on 29^thApril, 1980.

--S. 417--Appeal against acquittal-Ocular testimony suffering from material contradictions and too much exaggerated account of occur rence involving as many as 9 accused members of same family-Place of occurrence although inhabited by 30 35 houses yet not a single independent witness cited to corroborate either version in respect of motive or regarding incident itself-Eye-witnesses of occurrence deliberately avoiding to explain injuries sustained by accused and denying to have caused them-Complainant trying to improve upon his case as set up in F. I. R. and specifying roles to accused causing injuries to prosecution witnesses to fit in with cases---Acquittal recorded by trial Court, held, quite justified in circumstances-Inter ference declined.-[Appeal against acquital].

Kazi Kadir Bux for the Complainant.

Respondent (absent).

Murtaza Hussain for A.-G. for the State.

Dates of hearing : 28th and 29th April, 1980.

.---This is an appeal filed by the Provincial Government through Advocate General Ex Officio Police Prosecutor under section 417, Cr. P. C. challenging the acquittal of Badal, Wahid Bux, Umedali, Mohammad Bux, Mohammad Hasan. Malook, Mohammad Hassan, Kaisar Ibrio and Kadoo, residents of village Chandi Bacho Deb Khandoo, Taluka Hala, who have been tried under sections 147, 148, 323 and 324, P. P. C. in respect of Crime No. 93 of Police Station, Hala of District Hyderabad, committed on 25th August, 1970 near the house of the complainant in Deb Khandoo. The case was tried by the learned Civil Judge and F. C. M., Hala, who by his judgment dated 17th June. 1973 acquitted them. Mr. Murtaza Hussain, has appeared for the State whereas neither any of respondents appeared nor any one on their behalf appeared. It was during the pendency of this appeal, when the respondent Badal died apd the appeal against him abated for that reason.

2. The facts of the prosecution as stated in the F. I. R. are as under:-

That I own buffaloes and cows. My brother Tahir Bacho is residing with me. Yesterday, i.e. on 24th August, 1970 in the night, my nephew Nooro Bacho son of Tahir who graze their cattle came and told that Umedali and Ubrio by caste Bacho were stealthily taking away his one buffalo from jungle during the day light but on his cries they left the buffalo and went away. Thereupon Tahir asked Nooro that this be reported to the police in the morning. Today, i.e. on 25th August, 1970 in the morning, at one Pahar' after sunrise, when I, my brother Tahir and nephew Nooro were going together to the Police Station to lodge complaint, and had left our house, and street and went a little ahead, there were Wahid Bux Bacho armed with hatchet, Mohammad Bux, Umedali, Mohammad Hassan, Badal, Ubrio, Kadoo and Malook armed with lathis and hatchets. Kaisar was empty handed. He shouted at his accom plices that they were still watching and asked them to kill us out right. Then Mohammad Bux Bacho also instigated, and they along with their accomplices showered lathis and sharp-sided hatchet blows to me, my brother Tahir and nephew Nooro Kaisar took the hatchet from his companion and gave the hatchet injuries. I have received sharp-sided hatchet injuries on my head and on my left hand finger. Tahir also received injuries. Nooro and Tahir are on the scene of offence. On cries, my brother's wife Mst. Bachul and others came who saw the scene of offence but did not come near due to fear. Then the accused persons ran away towards their houses. Now I have come to lodge the complaint that accused namely, Wahid Bux, Mohammad Bux, Umedali, Mohammad Hassan, Badal, Kadoo, Malook and Kaisar armed with deadly weapons and by making un lawful assembly had given lathis and sharp-sided hatchet injuries to me, my brother Tahir and my nephew Nooro, with intention to kill us. It may be looked into."

3. The F. I. R. Exh. 2 was registered by Shahdad Khan (P. W. 6) A. S. I. P. Incharge at Police Station Hala. The complainant had injuries on his person and he prepared such mashirnama Exh. 15 in presence of mashirs Akko and Jummo. He referred him to Medical Officer, for examination, treatment and certificate. He recorded statement of Mst. Bachul, wife of Tahir, who had accompanied the complainant to the Police Station. He then alongwith the Head Constable Rano Khan and mashirs Jummo and Akko proceeded to scene of offence, which was situated in adjoining village Chandi Bachoo in 'barani' lands. There were blood spots and he prepared such mashirnama Exh. 16 in presence of same mashirs. Noor Mohammad P. W. 2 and Tahir P. W. 4 were at the scene of offence having injuries on their person. He prepared such mashirnama of injuries Exh. 17 in presence of same mashirs and recorded their state ments under section 161, Cr. P. C. He thereafter referred them to Medical Officer for examination, treatment and certificate. He then visited the houses of the accused and searched them but nether any of the accused nor incriminating articles were found out from there. He arrested accused Badal, Mohammad Hassan and Umedah on 22^ndSeptember, 1970 in presence of mashirs Dhani Bux and Kazi and prepared such mashirnama Exh. 19. He arrested accused Wahid Bux, Ubrio, Mohammad Bux, Malook and Kaisar from Kacho village in presence of mashirs Mohammad Ali and Sohib on 24^thMarch, 1970 and prepared such mashirnama Exh. 20. Kadoo accused was arrested by S. H. O. Ali Bux on 14^thNovember, 1970, who prepared such mashirnama Exh. 21.

4. Dr. Jamilur Rehman P. W. 5 has been examined to prove injuries on person of the eye-witnesses.

5. The accused who are related inter se however denied all allegations and claimed to have been implicated due to enmity and have further stated that the eye-witnesses have sustained injuries at the hands of one Rato Charo and others.

6. The prosecution case is mainly based on ocular testimony of the injured eye-witnesses, evidence of motive, evidence on circumstances of injuries on the person of the accused and the medical evidence.

7. The trial Court has acquitted the accused /respondents and the reasons that we have been able to find for passing the judgment of acquittal are:-

(i) that injuries on the person of the complainant Allah Bachayo, Noor Mohammad and Tahir were not proved and so also the injuries on person of the accused/respondents Badal and Kaisar. The trial Court has advanced the reasons for such findings, as there being contradictory evidence of the Medical Officer and that of investigating officer and eye-witnesses in respect of number of injuries.

(ii) The ocular testimony consists of the witnesses who were closely related to each other as the complainant Allah Bachayo is brother of Tahir P. W. 4 and P. W. 3 is son of Tahir whereas Mst. Bachul is wife of Tahir. They also reside together in one and the same house.

(iii) The evidence of motive has no corroboration except a word from Noor Mohammad P. W. 2 who had gone for grazing cattle.

8. We have heard the learned counsel for the State and have also considered the evidence on record. It would be necessary to mention at this stage that accused/respondent Mohammad Hassan had also registered his counter F. I. R. on the same day at 12.15 noon at the same Police Station which was duly registered in the Roznamcha under sections 504 and 323, P. P. C. against the complainant Allah Bachayo. P. Ws. Tapir and Noor Mohammad and two others. Dr. Jamilur Rehman has also certified that fact of injuries on person of the accused/ respondents Badal and Kaisar.

The learned counsel for the State has laid great stress that the eye witnesses be believed without corroboration though they were closely related to each other. We have considered his contention but are unable to agree with such proposition of the learned counsel for the State. Their evidence suffers from infirmities as the injuries on the person of the accused/respondents have .not been explained in spite of the fact that the eye witnesses have been specifically asked, if they caused injuries to accused/ respondents Badal and Kaisar but they have denied Moreover motive advanced by the prosecution does not in spite confidence as the alleged incident in respect of buffalo theft occurred a day prior to this incident in the fields where Noor Mohammad P. W. 2 had gone to graze his cattle but report for such minor incident was being lodged on the next day i.e. a day after incident. The number of accused implicated by the complai nant is as many as nine persons for having caused injuries to the eye witnesses which is highly improbable and in absence of specific evidence as to how many injuries were inflicted by each accused and to whom, it would not be possible to rely on their evidence. The complainant has, also, tried to make improvement in his case, set up by him in the first instance in the F. I. R. and has tried to give a picture of specifying roles to the accused causing injuries to the P. Ws, which is a subsequent deliberate effort to fit in with the case, but admittedly an after thought which can not be accepted. There is such an exaggerated version that it has become very difficult to find out the specific parts of the accused /respondents. It has been admitted by the complainant that there are 30-35 houses in their village but still not a single independent witness has been cited to corrobo rate either the version in respect of motive or regarding this incident, which has resulted in injuries on the person of the complainant and the others. We do not consider such a testimony to be truthful and accept able in view of material contradictions and too much exaggerated account of the occurrence involving as many as the nine members of the same family. We do not consider that the judgment of the trial Court is based either on any illegality or on improbable appreciation of evidence.

10. In the result we are of the view that the acquittal of all accused/ respondents was quite justified under the circumstances of the case and this appeal against their acquittal is hereby dismissed.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.