BAQAR Vs. EMPEROR

JUDGEMENT

(1.) Baqar, appellant, aged about 19 years, appeals against his conviction of an offence under Section 304, Indian Penal Code, and the sentence of three years rigorous imprisonment passed upon him by the leaned Additional Sessions Judge of Meerut.

(2.) Baqar and his three brothers, Sharafat, Liaqat and Latafat, were tried for an offence under Section 304 read with Section 34, Indian Penal Code, on a charge arising out of an incident which occurred at about sunset at village Kalchina on 6-12- 1945. In this incident one Ausaf Ali aged 55 years received a number of injuries with lathis. Ausaf Ali died while he was being taken to the thana on a cot. A report was made at police station Modingar, some four miles away from the village, at about 8-30 A.M. next morning by a man called Nizam Uddin a nephew of Ausaf Ali. Police investigation followed with the result that Baqar and his three brothers were put upon their trial before the leaned Additional Sessions Judge. The first information report, on the face of it, was very much delayed and there is no explanation for this offered by the prosecution. In this report Baqar as well as his three brothers were all named as the culprits and four eyewitnesses who were produced in the Court of Sessions to prove the prosecution version, viz., Asghar, Abdul Latif, Kale and Meharban, were also named as witnesses in the report. In the course of the trial, the three brothers of Baqar appellant pleaded an alibi and asserted that they had given no beating to Ausaf Ali. Further, they said that they had been implicated because they were brothers of Baqar appellant who had given beating to Ausaf Ali under the circumstances stated by him (Baqar). Baqar stated that at about 4 P.M. on 6-12-1945 he went to see his persian wheel near his own Arhar field. On reaching there he found Ausaf Ali's cattle damaging his Arhar field while Ausaf Ali was sitting there. Thereupon he wanted to drive away the cattle and then Ausaf Ali started abusing him and then began to beat him. He also gave a beating to Ausaf Ali in self defence.

(3.) The leaned Sessions Judge, on a consideration of the evidence of the four eye - witnesses produced by the prosecution and the probabilities of the case which he has very carefully summarised in the course of the judgment, came to the conclusion that the motive alleged by the prosecution was highly improbable. He further found that there was in fact no fight at the place alleged by the prosecution. Dealing with the evidence of the four eye-witnesses, the leaned Judge has expressed the view that there is reason to believe that the prosecution witnesses who purport to be eye-witnesses have come for ward to support the prosecution version because they are relations of prosecution witness Nizam Uddin and the deceased Ausaf Ali. Finally, considering the nature of the evidence given by the four eye-witnesses and the probable character of the prosecution version and the various improbabilities pointed out by him in his judgment, he came to the conclusion that the prosecution version was on the face of it "improbable." Along with this conclusion reached by him, he also felt that there was reason to doubt that the defence version was true, at any rate in two particulars namely that the fight took place between Baqar only on one side and the deceased on the other and that the cause of this fight was the grazing of the cattle of Ausaf Ali in Baqar's Arhar field. An examination of the judgment of the leaned Judge would make it clear that he would have believed the defence version with regard to the right of the private defence as well, if, as he has put it, he had discovered any injury on the person of the appellant Baqar or if he had found, to quote "his own words, any of the defence witnesses stating that Ausaf Ali gave the first blow to Baqar appellant.