Hafiz Vs. State of U.P
 Insc 539 (4 October 2005)
S.B. Sinha & R.V.
Raveendran with Criminal Appeal No. 1163 of 2004 State of U.P. Appellant Versus
Hafiz Rafiq Respondents Sharif Lal Mohammed S.B. Sinha, J :
These two appeals arising out of a common judgment and order dated 26.8.2003
passed by the High Court of Judicature at Allahabad in Crl. A.
No. 1795 of 1981 were taken up for hearing together and are being disposed
of by this common judgment. Criminal Appeal No. 263 of 2004 is by Accused No. 1
and Criminal Appeal No. 1163 of 2004 is by the State.
The incident occurred at about 7 P.M. on 28.10.1976 wherein Abdul Rahman, deceased
,was said to have been killed by the accused persons, viz., Hafiz, Rafiq, Sharif
and Lal Mohammed (the Appellant in Criminal Appeal No. 263 of 2004 and
Respondents 2 to 4 in Criminal Appeal No. 1163 of 2004). Hafiz, Rafiq and Sharif
are brothers. Lal Mohammad is their cousin.
The deceased (Abdul Rahman) and his brother Suleman, PW-1 were residents of
village Khitauli. Indisputably, the fields of the deceased and the accused are
adjacent to each other being divided by a water channel. The said water channel
is connected with one Mohanpur Branch canal. The irrigation of the agricultural
lands of both the parties used to be done through the said canal. Allegedly,
2-3 days prior to the occurrence, altercations had taken place between the
accused persons and the deceased as regard taking of water from the said canal
for irrigational purpose. As the deceased allegedly had taken water from the
canal for making his field ploughable, the accused persons objected thereto.
At about 7 P.M. on 28.10.1976, PW-1 accompanied by the deceased went to
their field allegedly for checking as to whether the same had become ploughable.
The accused armed with lathies are stated to have come to the field. It is
further stated that the accused had asked the deceased as to why he had taken
water from the canal as a result whereof the channel of the canal was allegedly
broken resulting in stoppage of flowing of the water to their field. Stating
they would not leave him alive, lathi blows were inflicted on him. PW-1 raised
alarm whereupon Ghasi Khan PW-2 and Darab Khan, PW-3 came to the spot but when
an attempt was made by them to save the deceased they were threatened and
chased away by the accused persons.
They ran towards the village leaving the deceased in the field. A First
Information Report was lodged at about 9.05 P.M. on the same date.
Allegedly, the body of the deceased was brought in a tractor by the accused
persons themselves accompanied by 16-17 persons whereupon they were arrested.
Upon completion of the investigation pursuant to or in furtherance of the
said First Information Report, the accused stood their trial before the learned
Sessions Judge. During trial the accused raised two divergent defences : (i)
The deceased had cut the crop of bajra which was ripe from their field and
having been so found by them, he ran away towards his field but was caught by
Hafiz. The deceased had a sickle with him and as he intended to cause injuries
upon Hafiz, he in exercise of his right of private defence hit him on his head
with lathi; and (ii) When the deceased was caught and brought to the police
station, he sat on a stool and the Daroga while interrogating kicked him as a
result whereof he fell down and complained of pain in his stomach. A doctor was
called and thereafter he was taken in custody.
The learned Sessions Judge in his judgment rejected both the defences and
found them guilty of commission of an offence under Section 302 read with
Section 34 of the Indian Penal Code and sentenced them to undergo rigorous
imprisonment for life.
On appeal, the High Court, however, accepted the defence of right of private
defence raised by the accused opining that they have shown preponderance of
probabilities therefor in view of the statements made by the prosecution
witnesses in their cross-examination. The second defence raised by the accused,
namely, the incident which took place in the police station, i.e., a Daroga
while interrogating kicked the deceased whereupon he fell down and died was,
According to the High Court, Appellant Hafiz had, however, exceeded his
right of private defence. It, therefore, acquitted the other three (Rafiq, Sharif
and Lal Mohammed) on the ground that they could not have shared any common
intention with him as he had merely exceeded his right of private defence which
is an individual act. While holding the Appellant Hafiz, guilty for commission
of offence under Section 304, Part II of the Indian Penal Code, the High Court
sentenced him to undergo rigorous imprisonment for a period of seven years. The
appeal preferred by Rafiq, Sharif and Lal Mohammad was, thus, accepted and they
were acquitted on being given the benefit of doubt.
Both Hafiz and the State of U.P. are in appeal before us from the said
At the outset, we have to reject the second defence of the accused, that is,
Abdul Rahman, though given some lathi blows, was alive when he was brought to
the police station, and died of injuries sustained by him from a kick on his
back given by the Daroga and his consequent falling down on the floor. Satish
Chandra (DW1), on whose evidence strong reliance is placed to show that Abdul Rehman
was brought alive to the police station, only says that Abdul Rehman was
slapped by the Daroga. He does not say anything about Abdul Rehman being kicked
by the Daroga or his falling down hitting his head on the floor.
The learned counsel appearing on behalf of the accused would submit that the
prosecution has failed to prove any enmity between the parties and in fact PW-1
and PW-3 had accepted that there had been none, with regard whereto, our
attention has also been drawn to the following finding of the learned Trial
"but it has come in evidence that there exists no enmity from before of
his occurrence between them and accused." It was urged that even motive
for commission of the offence has not been proved in regard whereto our
attention in this behalf has been drawn to the following observations of the
High Court :
"When Bajra, Arhar and Sugarcane crops were existing in the fields of
appellants 1 to 3, there was no occasion for the above appellants to take water
from water channel to make it ploughable and there was no other fields of the
appellants near the said water channel. Moreover, in case Abdul Rahman deceased
had taken water from water channel to make his field ploughable water channel
was not blocked and the appellants 1 to 3 were not affected by the above act of
Abdul Rahman deceased. This being so there was no occasion for appellants 1 to
3 to complain to Abdul Rahman deceased that on account of taking water by him
(deceased) they could not take water to their field to make it ploughable. This
shows that the motive alleged by the prosecution is improbable and it could
give no occasion for the appellants 1 to 3 to exchange altercation." The
genesis of the occurrence, the learned counsel would contend, has been
suppressed inasmuch as in the First Information Report, it had not been
disclosed that the deceased was alive when he was brought to the police station
by the accused persons in a tractor. Had the prosecution story been correct, it
was submitted, the witnesses (particularly the brother of the deceased) despite
having been chased away would have come back with others to the field to find
out as to whether the deceased had succumbed to his injuries or not. Even
without making any attempt to ascertain the condition of his brother, PW-1 is
said to have proceeded to the police station although he could not have been
sure about the death of his brother.
Taking us through the deposition of the witnesses, the learned counsel would
submit that the prosecution witnesses contradicted themselves and, thus, they
should not have been relied upon. In any event, the accused Hafiz was entitled
to exercise his right of private defence.
Mr. Sahdev Singh, learned counsel appearing on behalf of the State of U.P.,
on the other hand, would contend that from the tenor of cross- examination as
also their statements under Section 313 of the Code of Criminal Procedure, the
accused persons have admitted the place of occurrence and the time of
occurrence. It further stands admitted, it was urged, that one lathi blow had been
given on the deceased.
Drawing our attention to the fact that the deceased suffered a number of
injuries, the learned counsel would submit that the internal injuries received
by the deceased could not have been caused by one single blow.
The accused persons, according to the learned counsel, had sufficient motive
to commit the crime having regard to the fact that there had been altercations
and exchange of hot-words relating to irrigation of their respective fields two
days prior to the date of incident.
The High Court, it was submitted, has committed a serious mistake in coming
to the conclusion that the prosecution has not been able to establish the
motive. It was urged that the prosecution has proved motive on the part of the
accused for assaulting Abdul Rahman (deceased). The genesis of the occurrence,
the learned counsel would contend, has also been established. It was further
submitted that nothing has been brought on record to show that it was the
deceased who had cut the ear-corn of bajra.
Mr. Singh would argue that it is only PW-3 who alleged that sickle was lying
in the bajra field; but therefor only he was declared hostile, as no such
statement was made by him either in the examination-in-chief or in his
statement before the police under Section 161 of the Code of Criminal
Procedure. Had any sickle been found when the accused persons brought the body
of the deceased to the police station for the purpose of lodging a First
Information Report against him, they could have brought the same with them and
in any event, during investigation it could have been pointed out to the
Investigating Officer. As it has not been established that the deceased had cut
ear-corn of bajra or was having a sickle in his possession, the plea of
exercising a right of private defence cannot be given any credence.
We have been taken through the depositions of the witnesses brought on
record. Indisputably there exist certain discrepancies in the statements of the
prosecution witnesses but, in our opinion, from the broad feature of the case
to which we will advert to a little later, it would appear that the prosecution
has been successful in bringing home the charges leveled against the accused.
The learned counsel appearing on behalf of the Appellant-Hafiz did not
question the correctness or otherwise of the sketch map prepared by the
investigating officer. The sketch map shows that the place of occurrence is the
irrigated field of the deceased measuring 14 bighas. In the field of Wazir,
father of the Appellant-Hafiz, there were standing crops of bajra, sugarcane
and arhar. The crops of bajra were grown on the north side of the field
abutting Mohanpur Branch canal. A part of the said crops was found to have been
cut. The place of occurrence, however, is almost at the middle of the field of
the deceased and situate by the side of the water canal. The crops which were
cut was towards the north of the field of Wazir.
According to PW-3, the sickle was found there. If the defence case is to be
believed, the sickle should have been found in the hands of the deceased or
near the place where the incident took place. It is not in dispute that Hafiz
and other persons came to the police station purportedly for the purpose of
lodging the First Information Report against the deceased on the premise that
he had cut the bajra crops from their field. According to them, he was alive
then. It was, therefore, necessary for the defence to bring the said sickle
with them either for the purpose of showing that with it the crop of bajra was
being cut and/or it was with the said weapon he intended to assault Hafiz
giving rise to exercise his right of private defence. The purported exercise of
right of private defence cannot also be accepted in view of the fact that even
the First Information Report lodged by Hafiz has not been brought on record.
The High Court, therefore, apart from not assigning sufficient and cogent
reasons did not consider the case from this aspect. In view of the evidence
brought on record, the genesis of the occurrence appears to be as disclosed by
the prosecution. No reason whatsoever was assigned by the High Court as to why
the statements of the PWs in this behalf shall be discarded.
The contention of the learned counsel that the fact that Abdul Rahman
(deceased) was either brought alive or otherwise, should have been disclosed in
the First Information Report, cannot be accepted, in view of the fact that the
First Information Report was lodged before the dead body was brought.
Furthermore, according to the accused only one blow of lathi was inflicted
on the head of the deceased. The autopsy report, however, shows that the
following injuries were received by the deceased :
"1. Contused wound 4 cm x 0.8 cm x bone deep over front part of the
head 9 cm above root of the nose with swelling all around.
2. Contused wound 2 cm x 0.5 cm x muscle deep on the back surface of left
3. Abrasion 2 cm x 1 cm at back surface right elbow.
4. Lacerated wound 1 cm x 0.2 cm x muscle deep on the left front surface
index finger left hand.
5. Contused swelling 10 cm x 8 cm on the left chest lower part at the
portion of axillary line.
6. Multiple abrasions of the various size on the back of chest in an area of
18 cm x 12 cm.
7. Contusion 3 cm x 2 cm on the left side back scapula region.
Internal examination showed that skull was congested under injury no. 1.
Frontal bone crushed and depressed in an area of 1.5 cm x 1 cm under injury no.
1. Membrances were congested.
Brain was congested on both sides. Walls were congested. 5th, 10th and 11th
ribs were fractured under injury no. 5. Peritoneum cavity contained about one
and half litre blood. Stomach contained semi digested food. Small intestine
contained digested food. Large intestine contained some faecal matters. Cause
of death was coma and haemorrhage as a result of ante mortem injuries."
Both the Trial Judge as also the High Court have arrived at a finding that the
date, time and place of occurrence stood admitted.
From the foregoing discussions, it must be held that the prosecution proved
that the occurrence took place in the field of the deceased and not in the bajra
field of the Appellant.
We are also unable to accept the findings of the High Court that having
regard to the fact that the crops of bajra, arhar and sugarcane were standing,
the accused persons were not required to take water from the water channel to
make it ploughable. It is the case of prosecution that the deceased and Suleman,
PW-1, had gone to their field for checking whether the land has become ploughable
and it is not the case of defence that they had gone to their field to check
whether their land has become ploughable. The High Court has failed to consider
that even the standing crops of sugarcane and arhar could require water for
irrigational purpose. It is not in dispute that the land of the deceased was
fallow and stood irrigated which also give credence to the prosecution story.
Thus, we agree with the conclusion of the learned Sessions Judge that the
accused persons had the motive to pick up quarrel with the deceased. If this
aspect of the prosecution story is believed, the High Court must be held to
have fallen into an error in coming to the conclusion that the prosecution has
suppressed the origin and genesis of the occurrence.
It may be noticed that the defence witness (Satish Chandra DW1) does not
say about the standing crop. He did not even say that he had been told by the
accused persons that the deceased had cut the standing bajra crop. Such a
statement has been made only by PW-3 who was declared hostile.
If the statement of PW3 to the aforementioned effect is discarded, no
credence can be given to the plea of exercise of right of private defence set
up by the accused. The said plea was raised, as noticed hereinbefore, in the
context that the deceased intended to hit the Appellant, Hafiz with the sickle
and then he exercised the right of private defence by hitting on his head with
The High Court in its judgment has proceeded on a hypothesis that the
deceased was cutting ear-corn of Bajra from the field of the Appellant and when
he objected thereto he tried to inflict a blow on him and he acted in his self-defence.
We are unable to subscribe to the said view.
Hafiz, thus, must be held to have accepted that he had assaulted the
deceased on his head with a lathi.
The High Court also in its impugned judgment recorded:
"The contention of the appellants was that appellant Hafiz caused lathi
injuries on the deceased though in exercise of right of private defence and,
therefore, it was only appellant Hafiz who exceeded the right of private defence
and his act comes within the purview of culpable homicide not amounting to
murder punishable under Section 304 part-II I.P.C." A concurrent finding
of fact has, therefore, been arrived at by the courts below that Hafiz caused lathi
injuries on the deceased.
The findings of the High Court that the prosecution has not clarified as to
what was the size of moon in the night of occurrence must be held to be
irrelevant in view of the fact that the accused persons have not denied or
disputed the time and place of occurrence. It also stands admitted that the
accused persons were involved in the occurrence.
It is now well-settled by various decisions of this Court that different
persons act differently in a given situation. According to PW-1 and PW-3, they
were threatened and chased away after the deceased was assaulted.
They might not have, out of fear, ventured to go back to the field. They
came to know of the death of Abdul Rahman from others. They got a report prepared
with the assistance of one Anwar and left for police station. It may be correct
that in aforementioned situation some other persons might have gone to the
place of occurrence, with their relatives and other villagers, but only because
they did not do so, would not by itself be a pointer to the fact that their
testimonies cannot be relied upon for any purpose whatsoever.
It may be true that the right of private defence need not specifically be
taken and in the event the court on the basis of the materials on records is in
a position to come to such a conclusion, despite some other plea had been
raised, that such a case had been made out, may act thereupon. The High Court,
however, unfortunately proceeded to rely upon the defence version only i.e. on
the basis that the place of occurrence was the field of the Appellant and
sickle and the harvested bundles of ear-corn of bajra were lying.
Mutually destructive defences taken by the accused persons would also go a
long way to disbelieve their story. Both the Trial Judge and the High Court has
rejected the defence taken by the Appellant in his examination under Section
313 of the Code of Criminal Procedure.
We may notice that Mahesh Chand Dixit, PW-5 (Sub-Inspector of Police) stated
that the dead body of the deceased was brought on the tractor of Nobat Ram Prasadi
Lal. He recorded the statements of Suleman, PW1 in the police station and
statement of Darab Khan at the same time. The deceased admittedly was assaulted
with lathis by the Appellant. The lathis seized at the instance of Rafiq and Lal
Mohammad were found to have been fitted with iron cap at the one end.
However, it must be recorded that even if we accept the statements of the
prosecution witnesses, it would appear that the occurrence might have occurred
at the spur of the moment.
We, thus, agree with the conclusion of the High Court that Abdul Hafiz,
Appellant in Criminal Appeal No.263 of 2004, is guilty of commission of an
offence under Section 304 Part II IPC. Admittedly, Abdul Hafiz had caused a
head injury and as such we do not intend to interfere with the judgment of the
High Court even as regard quantum of sentence. In that view of the matter, the
appeal preferred by Hafiz being Criminal Appeal No.263 of 2004 is dismissed.
So far as Rafiq, Sharif and Lal Mohammad, Respondent Nos. 2 to 4 in Criminal
Appeal No.1163 of 2004 are concerned, there is no justification for giving them
the benefit of doubt as has been done by the High Court. The fact that they had
also beaten the deceased with lathis is established not only by the evidence of
PW1 and PW2, but also by the evidence of PW3. It cannot, however, be said that
they had any intention to cause death of the deceased Abdul Rahman. They might
have come armed with lathies with a common intention of threatening the
deceased and his brother and causing injuries upon the deceased. They are,
therefore, found guilty for commission of the offence under Section 326/34 IPC
and sentenced to three years' rigorous imprisonment. Criminal Appeal No.1163 of
2004 is allowed to the aforementioned extent.
The Accused may be taken in custody to serve out their sentences.