Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 136 of 2001 (Old No.3467/1999) Chanda Khan …Appellant Versus State …Respondent Sri S.K. Agrawal, Senior Advocate assisted by Sri S.S. Bhandari, Advocate for the appellant Sri Nandan Arya, A.G.A. for the State/respondent Dated: -11-2009 Hon’ble B.C. Kandpal, J. Hon'ble Dharam Veer, J. (Delivered by Hon'ble B.C. Kandpal, J.) This appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been preferred against the judgment and order dated 20.12.1999 passed by Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No. 612 of 1996, State vs. Chanda Khan and another, whereby accused/appellant- Chanda Khan has been convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’) and sentenced to undergo imprisonment for life and fine of Rs.1000/- and in default of payment of fine to undergo further one month’s simple imprisonment. The appellant/convict Chanda Khan was further convicted under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for five years and fine of Rs.1000/- and in default of payment of fine to undergo further one month’s simple 2 imprisonment. However, accused Shakeel Ahmad was acquitted of the offence under Sections 307/34 and 302/34 I.P.C. by the trial court for want of evidence. 2- The prosecution case, in brief, is that on 20.7.1991 at 21.15 p.m. Case Crime No.341/91, under Sections 307, 302 I.P.C. was registered at P.S. Kichha against the accused persons namely Shareef Ahmad, Chanda Khan, Aftab Khan and Shakeel Ahmad on the basis of written report of the complainant Wajahat Yaar Khan (PW-3). The Chick F.I.R. is Ext. Ka.16 and an entry to that effect was made in the General Diary at Report No. 47 on 20.7.1991 at 21.15 p.m. The F.I.R. has been filed by the complainant with the allegations that that on 20.7.1991 Wijahat Yaar Khan along with his wife Razda Begum was going to Darau on his Bullet Motorcycle. At 8.30 p.m. when they reached near Anaj Mandi, Darau Bend of village Darau, Shareef Ahmad S/o Abdul Lateef, Chanda Khan S/o Masheer Khan, Aftab Khan S/o Altaf Khan and Shakeel Ahmad S/o Shafeeq Ahmad stopped the way of Wijahat Yaar Khan by creating obstruction and Chanda Khan and Shareef Ahmad said that kill him. Accused Shareef was armed with Kanta, accused Chanda Khan was armed with double- edged knife, accused Aftab was armed with Kanta and accused Shakeel was armed with country made pistol. The accused persons were very well seen and identified by Wijahat Yar Khan and his wife in the light of motorcycle. The wife of Wijahat Yaar Khan ran towards east in the field by saving her life, while Wijahat Yaar Khan ran towards Darau Road by saying words ‘bachao, bachao’. The accused persons 3 inflicted injuries on the person of Wijahat Yaar Khan with Kanta and knife and they also fired shot on his back while he was escaping. The accused killed wife of Wijahat Yaar Khan by inflicting injuries on her person with Kanta and knife. The accused persons were having two motorcycles, one was Yamaha motorcycle of red colour and another was Suzuki motorcycle of red colour. Wijahat Yaar Khan also sustained injuries on his person. In the meantime, Nifasat Khan S/o Shakoor Khan, Wahid Khan S/o Aashaf Khan came on his Rajdoot motorcycle at the place of occurrence from the side of Kichha and they identified all the accused person in the light of his motorcycle and accused persons fled away from the place of occurrence towards Kichha on their motorcycles extending threat to the witnesses to kill them. The accused persons had old enmity with Wijahat Yaar Khan and his family members. The injured Wijahat Yaar Khan and dead body of his wife Razda Begum (deceased) were taken in hospital from the place of occurrence by the help of family members. 3- On the basis of the F.I.R. i.e. Ext.Ka.1, Chick F.I.R. Ext. Ka.16 was got prepared at P.S. Kichha and a case under Sections 307, 302 I.P.C. was registered against the accused persons, namely, Shareef Ahmad, Chanda Khan, Aftab Khan and Shakeel Ahmad. The entry was also made in the General Diary at Report No. 47 on 20.7.1991 at 21.15 p.m., the copy of G.D. is Ext.17. The investigation of the case was handed over to S.I. P.C. Verma, PW-9. He recorded the statement of Mohd. Ashar, scriber of chick report and the F.I.R. He also inspected the dead body of deceased Smt. 4 Razda Begum in Primary Health Centre and raided the house of the accused persons. On 21.07.1991, the Investigating Officer prepared the inquest report (Ext.Ka.9) of the dead body of deceased Razda Begum and sent the dead body for post mortem examination. He also took in his possession the knife which was stabbed in the back of the deceased and prepared a Fard, i.e. Ext.Ka.4. He also recorded the statement of injured Wajahat Yaar Khan in Primary Health Centre and took in possession his kurta and tight paijama and prepared recovery memo (Ext.8). Thereafter, on 21.07.1991 the Investigating Officer inspected the place of occurrence and prepared site map (Ext.15) on the pointing out of the complainant. He also took in his possession the bloodstained clay and the plain clay from the place of occurrence and prepared a Fard i.e. Ex.Ka.5. The investigating officer also took in his possession a torn and blood-stained veil (Burka) of the deceased, two pair of sleeper (chappal) of Wajahat Yaar Khan and deceased Razda Begum and prepared a Fard i.e. Ex.Ka.6, prepared sample seal. He also took in his possession Bullet Motorcycle from the spot and prepared a Fard i.e. Ex.Ka.7. Thereafter, on 22.7.1991, the Investigating Officer arrested the accused Chanda Khan and Shakeel and sent them in jail. On 24.7.1991, the Investigating Officer has taken the copy of injury report of the complainant and recorded the statement of witness Mobin. Thereafter, on 29.07.1991 he has taken the copy of post mortem report, he has given the motorcycle in Supurdugi on 30.7.1991 and recorded the statements of witnesses who were present at the time of Panchayatnama on 07.08.1991. The investigating officer recorded the 5 statement of witness Wahid Khan on 17.8.1991 and statements of witnesses Jahid Khan, Wahid Khan and Fariyad Khan on 23.8.1991. Later on, the investigation of the case was transferred to S.I. Sri R.S. Aswal (PW-8), who recorded the statement of complainant and his witness Nafasat on 8.9.1991 and has given the report for statement of the complainant and witnesses under Section 164 Cr.P.C., their statements were recorded in the court of Munsif Magistrate, Rudrapur. The Investigation Officer after completion of the investigation submitted the charge sheet against the accused persons Chanda Khan and Shakeel Ahmad under Sections 302, 307 I.P.C. on 30.3.1992, i.e. Ext.10. 4- Before further discussion, it is pertinent to mention the injuries found on the body of the injured Wajahat Yaar Khan (PW-3) vide injury report Ex.Ka.2, who was medically examined by PW-4 Dr. P.C. Pant on 20.07.1991 at 9.30 p.m. in P.H.C. Kichha, which are reproduced as under: - (i) Incised wound measuring 1.5 cm x ¼ cm x skin deep is present on the left forearm 12 cm above the left wrist joint. Margins clean and sharp erected. Fresh blood oozing from the wound. (ii) A linear abrasion measuring 5 cm x 0.1 cm is present on the right upper arm, 4 cm right upper arm, 8 cm below the right shoulder joint. Surface red and dry. (iii) A linear abrasion measuring 5 cm x 1 cm is present on the right upper arm, 2 cm above the injury no. 1. Surface dry and red colour. 6 (iv) Pt C/o pain over back on right and left both sides, but on examination external injury is seen. In the opinion of the doctor injury no. 1 is possible to come by a sharp edged weapon and injury nos. 2 and 3 are possible to come by a pointed weapon. Injury nos. 1, 2 and 3 are simple in nature. Injury no. 4 was kept under observation. Dr. P.C. Pant (PW-4) has proved the injury report and stated that he prepared the same at the time of inspection itself on 20.7.1991 at 9.30 p.m. and also stated that said injuries are possible to come by Kanta and knife on 20.7.1991 at 8.30 p.m. 5- The autopsy on the dead body of the deceased Smt. Razda Begum was conducted by Dr. A.S. Son (PW-5) on 21.7.1991 at 12.30 p.m. and following ante mortem injuries were found on her person: (i) Incised wound over the front of right upper arm 5 c.m. x 3 c.m., bone deep, 1.5 cm. below and in front of right shoulder dip (ii) Punctured wound over the right breast 4 cm. below right nipple, 3 cm x 1.5 cm x cavity deep (iii) Punctured wound over the right breast, 4 cm above the right nipple, 3 cm x 1.5 cm x cavity deep (iv) Punctured wound over the upper the upper part of right side of chest in front, 3 cm x 1.5 cm x cavity deep, 3 cm above the injury no. 3 7 (v) Incised wound over the right side of face, 2 cm in front of right ear 3 cm x 1.5 cm x bone deep (vi) Incised wound over the back of right ear wound, 3 cm x 1.5 cm x bone deep, 2.5 cm backward to right ear (vii) Incised wound over the back of neck right side 2 cm below the injury no. 6, 8 cm x 2 cm x bone deep (viii) Incised wound over the right side of neck 5 cm x 1.5 cm x bone deep (ix) Incised wound over the front and right side of neck, 8 cm x 1.5 cm x bone deep, 4 cm below the chin, wind pipe, food pipe slashed through and through (x) Punctured wound over the right side of back of hand 10 cm x 5 cm x brain cavity deep, skull bone fractured underneath and brain matter coming out (xi) Punctured wound over the back of right side of head 1 cm behind the right ear 10 cm x 5 cm x brain cavity deep bone fractured underneath and the brain matter coming out of the wound (xii) Punctured wound over the back of the upper part of right side of chest 2 cm below and right side of back of neck, 3 cm x 1.5 cm x cavity deep (xiii) Punctured wound over the back of right side of chest 5 cm below injury no. 12, 3 cm x 1.5 cm x cavity deep 8 (xiv) Punctured wound over the back of right side of chest, 2.5 cm below injury no. 13, 3 cm x 1.5 cm x cavity deep (xv) Punctured wound over the back of right side of chest, 2 cm below injury no. 14, 3 cm x 1.5 cm x cavity deep In the opinion of the doctor the cause of death was shock and haemorrhage on account of ante mortem injuries. According to the doctor, duration of above noted injuries is ¾ to 1 day and these injuries are possible to come by pointed and sharp- edged weapons on 20.7.1991 at 8.30 p.m.. 6- The Additional Judicial Magistrate, Rudrapur on receipt of the charge sheet after giving necessary copies to the accused Chanda Khan and Shakeel Ahmad as required under Section 207 of Cr.P.C., appears to have committed the case of the court of Sessions for trial on 6.12.1996. 7- The learned Additional Sessions Judge, Haldwani, Naintial, after hearing the parties, framed charge of offence punishable under Section 307 read with Section 34 of I.P.C. and Section 302 read with Sections 34 of I.P.C. against the accused persons, namely, Chanda Khan and Shakeel Ahmad. Both the accused pleaded not guilty and claimed to be tried. 8- The prosecution in support of its case got examined as many as 10 witnesses. PW-1 Nafasat did not support the prosecution case and he has been declared hostile. PW-2 Wahid also did not support the prosecution and he has been declared 9 hostile. PW-3 Wajahat Yar Khan (complainant) is the witness of the occurrence and he has fully supported the prosecution case. PW-4 Dr. P.C. Pant has proved the injury report of injuries sustained on the person of injured Wajahat Yaar Khan (complainant). PW-5 Dr. A.S. Son has conducted autopsy on the dead body of the deceased Smt. Razda Begum. PW-6 Nikhhad Yar Khan is the witness who has stated the fact that the inspector has took in his possession the blood-stained iron double-edged knife of 1.5 ft. long and about 1.5 inch wide and supported the prosecution case. PW- 7 Syed Iqbal Miyan is the witness who has given the statement with regard to preparation of Panchayatnama of the deceased-Razda Begum. PW- 8 S.I. R.S. Aswal and PW-9 S.I. P.C. Verma are the Investigating Officers of the case. They have narrated about the investigation and proved the prosecution papers prepared during the course of investigation. PW-10 Retired Head Constable Ashar Alam Khan is the scribe of the written report. 9- The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that due to enmity they have been falsely implicated in this case. The accused persons, however, did not adduce any defence evidence. 10- The trial court after hearing considered the entire evidence on record and hearing learned counsel for the parties found the accused/appellant Chanda Khan guilty of charge of offence punishable under Sections 307 and 302 I.P.C. The trial court did not found guilty another accused Shakeel Ahmad and acquitted him of the charges framed 10 against him. After hearing on sentence, the trial court convicted the accused/appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and directed to pay fine of Rs.1000/-. In default of payment of which the defaulter convict was directed to undergo further one month’s simple imprisonment. The convict/appellant Chanda Khan was further convicted under Section 307 I.P.C. and sentenced to undergo five years’ rigorous imprisonment and in default of payment of fine, he was also directed to undergo simple imprisonment for one month. 11- Feeling aggrieved by the aforesaid impugned judgment and order, the accused/appellant Chanda Khan has preferred the present appeal which has been placed before us for disposal. 12- We have heard Sri S.K. Agrawal, learned Senior Advocate assisted by Sri S.S. Bhandari, learned counsel for the accused/appellant, Sri Nandan Arya, learned A.G.A. for the State/respondent and perused the record. 13- The prosecution in support of its case has examined PW-3, Wajahat Yaar Khan, who is the only injured eye witness of the incident as he has sustained injuries on his person and his wife died in the same accident. This witness has narrated the meticulous details of the incident in his evidence. This witness stated on oath that on 20.7.1991 he along with his wife was going towards Kichha on his Bullet motorcycle and at 8.30 p.m. when they reached near Mandi Gate at Darau road, accused Chanda Khan along with his other three companion 11 were present. PW-3 further stated that accused Chanda Khan was armed with double-edged knife, while other co-accused persons were armed with either Kanta or country made pistol. This witness also stated that he identified the accused Chanda Khan in the light of his motorcycle. He further stated that accused Chanda Khan inflicted injuries on his person as well as that of his wife with knife and he said to the other co-accused persons to fire shot on them. PW-3 further stated that after sustaining injuries he ran towards Darau road by saying ‘Bachao, Bachao’ and his wife ran towards the fields. This witness further stated that he and his wife were assaulted by accused Chanda Khan and after his escaping from the scene of occurrence other accused persons also must have assaulted his wife, but he did not see. PW-3 Wajahat Yaar Khan also stated that there had been an old enmity with regard to land between accused Chanda Khan and him as well as his brother. In the cross examination, PW-3 has stated that he lodged the F.I.R. against accused Chanda Khan along with other three accused persons, namely, Aftab, Shakeel and Shareef, but he has identified only accused Chanda Khan on the place of occurrence and he has named other three accused persons in the F.I.R. on saying of people present over there. This witness further stated that he could not identify the other accused persons on the place of occurrence. This witness also stated that he was inflicted 3-4 knife injuries by accused Chanda Khan on his both the arms. This witness also stated that other three accused persons did not inflict any injury on his person. This witness further stated that after sustaining injuries he did not fell on the 12 ground, rather he himself had thrown the motorcycle. This witness further stated that there was a light from searchlight of Galla Mandi near the place of occurrence, but he identified the accused Chanda Khan in the light of his motorcycle. This witness has also stated in his cross examination that enmity is still going on between him and accused Chanda Khan with regard to land. In the cross-examination of this witness nothing could be brought out in his evidence which may render his testimony unreliable. Therefore, the testimony of this witness is natural and trustworthy. We have no reason to disbelieve the same. 14- The important aspect in this case is that the First Information Report has been lodged promptly by the complainant Wajahat Yaar Khan (PW-3). The incident had taken place on 20.7.1991 at 8.30 p.m. and F.I.R. of this incident was lodged on the same day at 21.15 p.m. Therefore, the F.I.R. lodged by the complainant (PW-3) appears to be prompt one as the same has been lodged within ¾ hours of the incident. The inquest report (Ext.Ka.9) also shows that it was prepared at about 10.00 a.m. on 21.7.1991. There is crime number mentioned in the inquest report. Not only this, post mortem examination of the deceased was conducted by Dr. A.S. Son (PW-5) on 21.7.1991 at 12.30 p.m. The promptness in lodging the F.I.R. clearly indicates that there was no chance available with the complainant to make out a cock and bull story. Therefore, we are of the view that the First Information Report lodged in the case on account of its promptness cannot be disbelieved. 13 15- Learned counsel for the accused/appellant has submitted that there was no motive of crime on the part of the appellant/accused. We do not find any substance in the argument advanced by learned counsel for the accused/appellant. Having gone through the statement of the eye witness Wajahat Yaar Khan (PW-3), we are of the view that prosecution has sufficiently shown the reason why the accused was prompted to commit the murder of deceased Razda Begum and to inflict injuries on the person of the complainant with intention to kill him. The prosecution has led the evidence of PW-3 Wajahat Yaar Khan before the trial court that prior to this incident there had been an enmity in between the accused/appellant and him and his brother and due to this, accused/appellant had illwill against PW-3 Wajahat Yaar Khan and his family members. On account of this illwill the offence has been committed. Thus, the prosecution has established the motive in its evidence. The trial court has held that there was sufficient motive to commit the offence in this case. The learned defence counsel at the time of the trial has made cross- examination to the witness but nothing could be elicited from his cross-examination with regard to the factum of motive. We do not find any infirmity in the findings recorded by the learned trial court regarding motive. 16- Learned counsel for the accused/appellant has further submitted that co-accused, namely, Shareef Ahmad, Aftab Khan and Shakeel Ahmad have been acquitted on the same set of evidence, whereas the present appellant/accused Chanda Khan has been convicted and sentenced as discussed above. 14 Therefore, learned counsel for the accused/appellant argued that the present appellant/accused is also entitled to get the benefit of acquittal and he cannot be convicted on the same set of evidence on which three other co-accused have been acquitted. We again do not find any force in the argument advanced by learned counsel for the accused/appellant. As far as participation of other three co-accused, namely, Shareef Ahmad, Aftab Khan and Shakeel Ahmad, in the commission of crime, is concerned, the evidence against these accused persons is different. PW-3 Wajahat Yaar Khan, eye witness of the incident, has stated in his deposition that he could not identify other accused persons except accused Chanda Khan. He has also stated that he lodged the F.I.R. against the other co- accused on saying of people present over there. This witness further stated that during the course of incident when accused Chanda Khan inflicted injuries on him he ran towards Darau and his wife ran towards east in the fields. He has further stated that he had escaped from the place of occurrence before Chanda Khan was inflicting injuries on the person of his wife. He further stated that he could not know as to how and in which manner Chanda Khan assaulted his wife and as to whether other co- accused persons assaulted his wife or not. This witness has further stated that he had identified only accused Chanda Khan in the light of his motorcycle, while rest of the accused persons could not be identified by him. Thus, the learned trial court has acquitted other co-accused persons giving them benefit of doubt as they were not identified by the only eye witness of the incident. We are also in 15 complete agreement with the findings recorded by the learned trial court in this regard. 17- Further, the ocular evidence of injured witness (PW-3) gets corroboration by the medical evidence. The prosecution has examined Dr. P.C. Pant (PW-4) who has proved the injury report (Ext.Ka.2). This witness has stated that on 20.7.1991 he was posted as Medical Officer at Primary Health Centre, Kichha. On that day, he has medically examined the injured Wajayat Yaar Khan and found as many as four injuries on his person. He has further stated that in his opinion injury no. 1 are possible to come by a sharp edged weapon and injury nos. 2 and 3 are possible to come by a pointed weapon. He further stated that injury no. 4 was kept under observation. This witness further stated that in his opinion the said injuries are possible to come by Kanta and knife on 20.7.1991 at 8.30 p.m. 18- The prosecution has also examined PW-5 Dr. A.S. Son, who prepared autopsy report (Ext.Ka.3) after post mortem examination of Smt. Razda Begum (deceased). This witness has stated that deceased had died due to shock and haemorrhage on account of ante mortem injuries. He has further stated that duration of injuries is ¾ to 1 day. This witness also stated that in his opinion the said injuries on the person of deceased are possible to come on 20.7.1991 at 8.30 p.m. He has also stated that the said injuries are possible to come by pointed and sharp edged weapons. He has further stated that either of the injuries does not appear to have been caused by firearms or Tamancha. In the cross examination this witness has stated that all 16 the ante mortem injuries of the deceased are possible to come by single pointed weapon. This witness has stated that he had seen the Khukri, which is a bent object; therefore these injuries could not have been caused by Khukri. He has further stated in his cross examination that these injuries could have been caused by pointed and sharp edged weapon only. This witness has