JUDGMENT
B.N.P. Singh, J.
1. Though the prosecution was launched only against Gafoor Mian, Khurshid Mian and Kalamul Mian, the Police on the investigation, laid charge-sheet before the Court also against Tajamul Mian, and Mahludan Khatoon. During pendency of trial, cases of Tajamul and Mahludan were, however, split up from the appellants.
2. The factual matrix – The prosecution was launched on behest of Abdul Rahim (P.W. 6) on accusation that on 17th October, 1987 while Jatulan was draining rain water that had collected in the courtyard of her house, there was quarrel with Mahludan and Tajamul. The dispute was, however, resolved due to intervention of Abdul Rahim (P.W. 6), who on getting the matter pacified, went to mosque to offer his evening prayer, and it was alleged that after the said Abdul Rahim was coming back from the mosque in the company of Md. Ainul (P.W. 1) after evening prayer, Khurshid and Kalamul Mian came to him, who exhorted their associates. It was alleged that on their exhortation. Abdul Gafoor, Khurshid Mian and Kalamul Mian caught hold of him. Abdul Gafoor hurled garasi blow on his neck though the aim was lost, and Abdul Rahim, however, suffered injuries on his right shoulder joint. Though the blow was repeated, but it is alleged that Md. Ainul caught the hands of the assailant and so the blow did not materialize. It is alleged that the assailant along with Kalamul Mian and Khurshid went to the roof of the house of Gafoor Mian from where they pelted brick bats causing injuries to Hasmullah Mian. After the Police was set in motion with these accusations, investigation commenced and during investigation, Police recorded statement of witnesses, visited the place of occurrence, got the injured clinically examined by the doctor and on conclusion of investigation, laid charge sheet before the Court against five persons of whom, trial commenced only against three persons, the trial of two having been split up by the trial Court.
3. Charges were framed against Md. Gafoor and Kalamul Mian under Sections 307/337 of the Indian Penal Code (IPC), while Mahludan Khatoon was charged only under Section 352, IPC. In the eventual trial, the State examined altogether seven wit-nesses, which include injured, other persons who claimed to be ocular witnesses of the incident, the doctor, who clinically examined Arjdul Rahim and Hasmullah, and also the Police Officer, who carried out investigation of the case. The defence too examined two witnesses including one formal and the other being Dr. Ramesh Mishra (D.W. 2). The defence of the appellants before the trial Court and also this Court had been plain denial of entire allegations and they ascribed their false implication due to animosity persisting with the witnesses, and the trial Court on meticulous appreciation of the evidence placed on the record, negative contentions raised at the Bar on behalf of the appellants while acquitted Mahludan of the charges, giving her benefit of doubt, did not find Gafoor Mian and Kalamul Mian also guilty under Section 307, IPC. However, the trial Court convicted Md. Gafoor and Kalamul guilty under Section 337, IPC and sentenced them to pay a fine of Rs. 100/- and in default, to suffer simple imprisonment for a term of one month. The trial Court also rendered verdict of guilt against Gafoor Mian finding him guilty under Section 324, IPC and sentenced him to rigorous imprisonment for a term of one year and also to pay a fine of Rs. 1000/-, in default of which, to suffer rigorous imprisonment for a term of six months.
4. Volume of arguments were canvassed at the Bar on behalf of the appellants to assail the propriety of the findings recorded by the trial Court and it is sought to be urged that-though a good number of persons were shown to have flocked to the place of occurrence, some of whom also took the injured to the hospital, only those witnesses who were partisan in nature or had been inimical to the appellants, had been examined by the State, entirely to the exclusion of the independent witnesses. Referring to the posture of the injured and the assailants, it is sought to be urged that it was most unlikely that the victim would suffer such injury on his person. The learned counsel had drawn my attention to the narration made by P.W. 6, and it is sought to be urged that in view of admission of the witnesses that darkness had set in at the material time of incident, it was most unlikely that the witnesses would identify the assailant. Referring to the narrations made by P.Ws. 1 and 2, it is urged that they had also deposed adverse to Kalamul Mian in another proceeding and, hence, no implicit reliance can he placed on these witnesses who were already inimical to the appellants. The other limb of argument canvassed at the Bar on behalf of the appellants was that it would appear from the testimony of Dr. Ramesh Mishra (D.W. 2) that Md. Shaukat Ali and Md. Gafoor too sustained injuries on their persons in the same transaction and since the prosecution had not explained the presence of injuries on their persons, the entire prosecution case had to be thrown overboard on this score alone and the last argument canvassed at the Bar on behalf of the appellants was that the prosecution was launched against them in the year 1987 and as the appellants had suffered the ordeal of protracted trial for about 15 years, ends of justice would be met, if instead of sentencing the appellants to imprisonment. They were sentenced to pay a fine. Learned counsel for the State would resist the contentions raised on behalf of the appellants.
5. Facts of the case are tell-tale which evidently show that as the rain water had collected in the courtyard of Jatulan, due to rain in the last night, she was draining the same, pursuant to which there was an altercation with Mahludan and Tajamul, which was pacified by Abdul Rahim (P.W. 6), and shortly thereafter, when Abdul Rahim was returning from the mosque after offering evening prayer, he was caught hold of by Khurshid and Kalamul Mian, pursuant to which Abdul Gafoor dealt blows with garasi on his right shoulder joint, and, on this score, there has been testimonies of Md. Ainul {P.W. 1), Hasmullah (P.W. 2), Mahboob Mian (P.W. 3) and Abdul Rahim (P.W. 6). They had made before the trial Court, coherent narrations about Gafoor dealing blows with sharp edged weapon on the right shoulder joint of Abdul Rahim when he was returning from mosque after offering prayer, in the company of Md. Ainul (P.W. 1). Though attention of these witnesses had been drawn by the defence towards their early versions which they rendered before the Police, ostensibly to impeach their credibility, they are not. on material facts, negativing appellant Gafoor, to be the assailant of Abdul Rahim. The narration made by these witnesses, who claimed to be ocular, would also receive corroboration from the findings recorded by Dr. Sushil Kumar Singh (P.W. 5) who noticed incised wound 4-1/2″ x 1″ x muscle deep on anterior aspect of right shoulder joints. Though the injury was simple in nature caused by sharp edged weapon, age of injury in the estimation of the doctor was about 12 hours old. The doctor also stated to have examined Hasimullah, on whose person he noticed lacerated wounds, which were simple in nature caused by hard and blunt substance as that of brick bats.
6. So far as the credibility of the prosecution witnesses and possibility of their being ocular witnesses was concerned, witnesses had been stating before the Court that Md. Ainul (P.W. 1) was in the company of Abdul Rahim when the latter received injuries on his person and, hence, this witness was quite natural witness, and his presence at the place of occurrence could not possibly be suspected. Hasmullah (P.W. 2) too has his house in the vicinity of the place of occurrence and the same reasoning for possibility of he being the ocular witness, would be applied. As for P.W. 3, his house is situated at a insignificant distance from the place of occurrence and he too was natural and probable witness to the incident. The incident took place near a well and that is also the objective finding of the Investigating Officer who visited the place of occurrence. Though blood-stained clothes, stated to be that of the injured, were produced before the Investigating Officer by Md. Ainul, but admittedly no reliance can be placed on this part of the prosecution case as nowhere Md. Ainul claims to have placed the blood-stained wearing apparel of the injured, before the Police Officer. The possibility of others being ocular witness of the incident, appears to be extremely remote in view of narrations made by P.W. 6, as in between the place of occurrence and the road where the occurrence took place, there are no residential houses, and similar has been the evidence of P.W. 3 that between the house of Gafoor Mian and the place of occurrence, there are no residential houses of others. True it is that P.W. 6 stated before the Court that at the material time of incident darkness had set in, but this statement of P.W. 6 loses its significance about darkness, in view of narrations made by P.Ws. 1 and 2, as while P.W. 1 was stating before the Court that there was sufficient light at the time of the incident. P.W. 2 narrated before the Court that, it was not so dark. Though contentions were raised at the Bar that a counter-case too was registered, but it seems that the Police did not submit charge-sheet after due investigation of the incident, against which a protest petition, as has been the evidence of P.W. 1, was filed before the Court and the learned counsel for the appellants fairly submits that he has no information about further stage of the proceeding. Those, who took the injured to the hospital include Samsul Haque and Hasmullah and one of them namely Hasmufiah, had been examined by the State. Though presence of Mahboob, Rasool and Shobharati Mian at the place of occurrence had been admitted by P.Ws. 1 and 2, but none of them had claimed to have noticed injuries on the person of either Gafoor or Shaukat. Dr. Ramesh Mishra stated to have examined Shaukat and found injuries on his person to be quite superficial caused by hard and blunt substance, and so far the injury of Gafoor was concerned though there was incised injury on his forehead and also tenderness, the injuries were simple in nature. The doctor has not ruled out such injuries being manufactured. True it is that the prosecution had not explained presence of injuries found on the person of Gafoor and Shaukat, but that would not negative the bona fide of entire prosecution case and that apart, the injuries found on the person of Shaukat and Gafoor, in estimation of the doctor who examined them, were only six hours old and, if the time of incident which happens to be 6 p.m. was taken into consideration, infliction of those injuries at such hour was totally discounted.
7. However, certain disturbing features of the prosecution case cannot be lost sight of. Though one Hasmullah Mian was also shown to have suffered one injury by pelting of brick bats by four persons, Gafoor and Kalamul suffered conviction under Section 337, IPC and that apart even the Police Officer who visited the place of occurrence, did not find presence of brick bats there. There was no explicit accusation against any of the appellants to be the author of injuries found on the person of Hasmullah by pelting of brick bats and in that view of the matter, both Gafoor and Kalamul, who suffered conviction under Section 337, IPC, are given benefit of doubt and acquitted of the charges levelled against them. So far as the case of Gafoor Mian was concerned, it is brought to my notice by the learned counsel for the appellants that he was in custody right from 14th April, 1989 to the date of the judgment i.e. 26th February, 1991 possibly, due to his incarceration in other cases also. The prosecution was launched in the year 1987 and the appellants suffered ordeal of protracted trial for about 15 years, and in that view of the matter, Md. Gafoor is sentenced to the period already undergone, but he is required to pay a fine of Rs. 1000/-(one thousand), as ordered by the trial Court, in default of which, he would suffer rigorous imprisonment for six months, and the amount of fine must be deposited within two months of the receipt of this order. Out of the fine so realised, half of it will be payable to the injured, or his successor, in case the former is not alive and with this modification in the order of conviction and sentence, this appeal partly succeeds.