IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of case Criminal Appeal No. 449 of 2001 Decided on: 7th May, 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Dated. 07.05.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 449 of 2001 (Old No. 1738 of 1993) Liyakat son of Shahid Resident of Qasimpur Police Station Roorkee, District Haridwar. …………..….. Appellant Versus The State …………… Respondent Mr. S.K. Mishra, Amicus Curiae for the appellant. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 14.09.1993, passed by learned Additional Session Judge, Roorkee, in Session trial No. 525 of 1988, whereby accused/appellant Liyakat S/o Shahid has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to undergo imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Liyakat S/o Shahid @ Sayeed was resident of Village Kelhanpur of tehsil Roorkee, District Saharanpur (now part of District Haridwar). Deceased Liyakat S/o Abdulla was also resident of the same village, who developed illicit relations, about 3 –4 months before the date of incident, with wife of accused / appellant Liyakat. About 4 –5 days before the incident, wife of accused /appellant Liyakat left with deceased Liyakat along with one child, leaving six other children in the house of the accused / appellant. On 28.05.1988, at about 10:00 –10:30 A.M., deceased Liyakat (S/o Abdulla) came to the house of accused / appellant Liyakat. Thereafter, at 11:30 – 12:00 noon, accused / appellant Liyakat came out from his house and was looking nervous. Many villagers, including P.W. 5 Naseeran, at that time were sitting under a Neem tree. When one Sakoora (since died) asked as to why accused / appellant Liyakat is looking nervous, he admitted having killed Liyakat S/o Abdulla. On this, P.W. 7 Zareef Ahmad, Village Pradhan orally reported the matter to the police at police station Roorkee, where the check report (Ext. A –5) of the oral first information report was prepared and Crime No. 173 of 1988 is registered against accused Liyakat S/o Shahid, relating to offence punishable under Section 302 of I.P.C. The necessary entry was made in the general diary, copy of extract of which is Ext. A –6, on the record. On that very day i.e. 28.05.1988, at 02:15 P.M., the police party with Sub Inspector Satish Chandra Pachori (P.W.8) reached the village and took the dead body of Liyakat S/o Abdulla in their possession and prepared inquest report (Ext. A -7). Police further prepared document form No. 13 (Ext. A-8); Sketch of the dead body (Ext. A –9); letter to the Chief Medical Officer (Ext. A -10) requesting for postmortem examination of the dead body. Dr. Arun Kumar Jain (P.W. 6) conducted the postmortem examination on 29.05.1988 and prepared the autopsy report (Ext. A –4). He opined, after recording ante mortem incised wounds that the deceased had died due to shock and hemorrhage, as a result of ante mortem injures. The crime was initially investigated by Sub Inspector Bhanu Pratap Singh (P.W. 9), who interrogated the witnesses and recovered the blood stained Spade (PHAWARA) used in the crime from the house of the accused / appellant Liyakat, and prepared the recovery memo (Ext. A –1) of the same. He also prepared site plan (Ext. A –11). On completion of the investigation, the charge sheet was finally field by Inspector Onkar Singh. 4) The Magistrate, it appears on receipt of charge sheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned Session Judge appears to have transferred the case to the court of Additional Session Judge, Roorkee, who after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against accused / appellant Liyakat S/o Shahid, on 08.11.1988. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Imrana, daughter of the accused (declared hostile); P.W.2 Rooksana, another daughter of the accused (declared hostile); P.W. 3 Ram Swaroop (witness of recovery of blood stained Spade, used in the crime, from the house of the accused); P.W. 4 Jogendra Singh (who is also witness of recovery of Spade from the house of the accused); P.W. 5 Naseeran (witness of fact, who has stated that before the incident deceased Liyakat had come to the house of accused and the accused Liyakat came out in nervous state and admitted having killed the deceased); P.W. 6 Dr. Arun Kumar Jain (who conducted the postmortem examination on the dead body of Liyakat S/o Abdulla); P.W. 7 Zareef (Vilalge Pradhan and informant); P.W. 8 Sub Inspector Satish Chandra Pachori (in whose presence check of the F.I.R. was prepared and who accompanied the police party to the spot, and inquest report and other papers were prepared in his presence) and P.W. 9 Sub Inspector Bhanu Paratap Singh (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he told that the evidence adduced against him was false. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found accused Liyakat S/o Shahid guilty of charge of offence punishable under Section 302 of I.P.C. After hearing the parties on sentence, learned trial court sentenced the convict to undergo imprisonment for life (under Section 302 of I.P.C.). Aggrieved by said judgment and order dated 14.09.1993, passed by learned Additional session Judge, Roorkee, In Sessions Trial No. 525 of 1988, this appeal is filed by the convict before the Allahabad High Court on 4th of October 1993, where the same was admitted on 5th of October 1993. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased at the time of postmortem examination, which are recorded by Dr. Arun Kumar Jain (P.W.6), who conducted the postmortem examination and prepared the autopsy report (Ext. A –4) on 29.05.1988. The ante mortem injuries are being reproduced below: i) “Incised wound 11 cm X 8 cm X bone deep on top of left shoulder with edges clean cut and contused with major vessels and soft tissues divided, and fracture of head of left humorous tailing towards arm. ii) Incised wound 13 cm X 8 cm X bone deep on back of neck extending from external occipital protuberance of head to the level of cervical 5 vertebra below with clean cut and contused edges dividing major vessels, soft tissues and fracture of cervical vertebra, tailing towards right side.” The Medical Officer opined that cause of death was shock and hemorrhage due to the ante mortem injuries. The aforesaid report establishes the fact on the record that Liyakat S/o Abdulla died a homicidal death and was murdered by causing the injuries, as mentioned above. Now, the question is whether the accused / appellant of October 1993, where the same was admitted on 5th of October 1993. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased at the time of postmortem examination, which are recorded by Dr. Arun Kumar Jain (P.W. 6), who conducted the postmortem examination and prepared the autopsy report (Ext. A –4) on 29.05.1988. The ante mortem injuries are being reproduced below:- iii) “Incised wound 11 cm X 8 cm X bone deep on top of left shoulder with edges clean cut and contused with major vessels and soft tissues divided, and fracture of head of left humorous tailing towards arm. iv) Incised wound 13 cm X 8 cm X bone deep on back of neck extending from external occipital protuberance of head to the level of cervical 5 vertebra below with clean cut and contused edges dividing major vessels, soft tissues and fracture of cervical vertebra, tailing towards right side.” The Medical Officer opined that cause of death was shock and hemorrhage due to the ante mortem injuries. The aforesaid report establishes the fact on the record that Liyakat S/o Abdulla died a homicidal death and was murdered by causing the injuries, as mentioned above. Now, the question is whether the accused / appellant Liyakat S/o Shahid committed murder of the deceased Liyakat S/o Abdulla, or not? 6) The inquest report (Ext. A –7) shows that after the Village Pradhan orally reported the incident to the police, the policemen reached in the village Kelhanpur and the dead body of deceased Liyakat S/o Abdulla was found in the house of accused / appellant Liyakat S/o Shahid. Apart from P.W. 8 Sub Inspector Satish Chandra Pachori and P.W. 9 Sub Inspector Bhanu Pratap Singh, the aforesaid fact is also proved by P.W. 7 Zareef, Village Pradhan, who has signed the inquest report. This circumstance is the most important and heaviest against the accused/appellant Liyakat S/o Shahid, on the record which corroborates the prosecution story. The site plan (Ext. A –11) prepared by the Investigation Officer shows that at place ‘XA’ in the Kothari (room) of the accused Liyakat, the dead body of the deceased was found. 7) The second circumstance against the accused/ appellant which has been established by prosecution, is his extra judicial confession soon after the incident, made to P.W. 5 Nasreen. This witness has no enmity or affinity either with the accused Liyakat or with the deceased Liyakat., P.W. 5 Nasreen has stated that on the day of incident she was standing in her SAHAN (court-yard) when she saw Liyakat (deceased) going towards house of Liyakat (accused). She says she enquired how he is there, on this Liyakat (deceased) told her that he is going to take back money which he has lent to accused Liyakat for the tractor. This witness further states that after about 20 – 25 minutes accused Liyakat (S/o Shahid) came out and was looking nervous. She further states that there was blood on his clothes when he came out of his house. P.W. 5 Naseeran further corroborates the prosecution story by saying that another villager Sakoora (since died) asked Liyakat (accused) as to why he is looking nervous, on which he told that he had killed Liyakat (deceased). This extra judicial confession made in the presence of P.W. 5 Naseeran is another important circumstance which has been proved on the record for proving the charge of offence punishable under Section 302 of I.P.C. against the accused / appellant. P.W. 5 Naseeran has further proved the other circumstance that she had seen about 20 -25 minutes before the incident Liyakat (deceased) going to the house of Liyakat (accused). 8) Yet another circumstance which has been established by the prosecution to prove the charge of murder against the accused / appellant is the recovery of blood stained Spade (PHAWARA) by which the accused killed the deceased. P.W. 3 Ram Swaroop and P.W. 4 Jogendra Singh are the witnesses of recovery memo prepared by the police on the day of incident itself relating to recovery of blood stained Spade from the house of the accused / appellant These two witnesses have proved the recovery memo (Ext. A –1). The site plan (Ext. A –11) shows that the Spade was found at place ‘BX’ in the Kothari (room) of the accused Liyakat, where the dead body was lying. 9) Though, P.W. 1 Imrana and P.W. 2 Rooksana have not supported the prosecution story and were got declared hostile by the prosecution, but the reason for not supporting the prosecution story by them is evident. Both the witness are daughters of accused / appellant Liyakat with whom they are living and certainly they would not like to see that their father is sent to jail on the charge framed against him. 10) Learned Amicus Curiae appearing on behalf of the accused / appellant drew attention of this Court to the principle of law laid down in State of U.P. Vs. Arun Kumar Gupta; 2003 Supreme Court Cases (Cri) 481, and argued that merely for that reason that dead body was recovered, the accused / appellant cannot be convicted of charge of offence punishable under Section 302 of I.P.C. We have gone through the aforesaid referred case decided by the Apex court. In said case the witnesses of recovery were not independent. In the present case, the witnesses of recovery of dead body including P.W. 7 Zareef, Village Pradhan, cannot be said to be interested witnesses. Also, witnesses of recovery of Spade are P.W. 3 Ram Swaroop and P.W. 4 Jogindra Singh, who are independent witnesses, as such, the case of State of U.P. Vs. Arun Kumar Gupta (supra) is of no help to the appellant in the present case. 11) On behalf of the appellant it is also contended that the chain of circumstances must be complete before it can be said that the accused has committed the crime alleged by the prosecution. In this connection, our attention is drawn to the case of Balu Sonba Shinde Vs. State of Maharashtra; 2003 Supreme Court Cases (Cri) 112. Having gone through the said referred case, we do not find that the facts of the present case are similar to the one referred on behalf of the appellant. In the case referred on behalf of the appellant there was no recovery of dead body form the house of the accused. That fact in the present case cannot be brushed aside lightly, particularly when the other circumstances brought on record by the prosecution fully corroborate said fact. 12) Having carefully re-examined the prosecution evidence on record, we are of the view that the trial court has committed no error of law or that of fact in holding that the prosecution has been successful in proving the charge of offence punishable under Section 302 of I.P.C. against the accused/appellant Liyakat S/o Shahid. 13) Therefore, this appeal is liable to be dismissed. The same is dismissed. The accused Liyakat S/o Shahid is on bail. His bail is cancelled. The Registry is directed to sent the lower court record back to the trial court to ensure that the convict appellant is made to serve the sentence awarded against him by the trial court. (Dharam Veer, J.)(Prafulla C. Pant, J.) Dt. May 07, 2008. H. Negi