IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Government Appeal No. 1472 of 2001 (Old No. 1036 of 1991) State …………….Appellant. Versus Abdul Gafoor, S/o Buddhu, R/o Theper, Police Station Kotwali Dehat, District Bijnor. At present Srikot Ganganasre, Srinagar Garhwal. …………..Respondent. Sri H.C. Pujari, learned Additional Government Advocate for the appellant. Sri T.S. Phartiyal, learned Amicus Curiae for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Prafulla C. Pant, J.] This appeal, preferred under Section 378 (3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 04.02.1991, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 42 of 1988, whereby accused / respondent Abdul Gafoor is acquitted of charge of offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). However, said accused / respondent was convicted under Section 309 I.P.C. by the trial court and sentenced to imprisonment already undergone in jail during trial. (2) Heard learned counsel for the parties. (3) Prosecution story in brief is that a First Information Report (Ext.A-2) was lodged by Diwakar Singh Rawat (son of P.W.2 Matbar Singh) on 18.09.1988 at about 6.15 A.M. with Police Station Srinagar, District Pauri Garhwal, in which it is alleged that Abdul Gafoor accused / respondent used to live with his wife Faujia alias Firoza (deceased) in the house of the complainant as a tenant. At about 5 A.M. on that day (18.09.1988) shouts were heard from the room of the deceased and the accused. Wife of the accused / respondent was shouting BACHAO, BACHAO (save! Save!). On this, complainant Diwakar Singh, his father Matbar Singh (P.W.2) along with another tenant went to the room of the accused / respondent. The room was bolted from inside. It is alleged in the First Information Report that Matbar Singh and other witnesses heard that the wife of the accused / respondent as moaning. The two persons, namely, P.W.2 Matbar Singh and Ahmad Hussain when peeped through the window, they found that wife of accused / respondent was lying in pool of blood. On this, complainant Diwakar Singh Rawat leaving other persons there, went to the Police Station and lodged the First Information Report (Ext.A-2). The Crime No. 33 of 1988 was registered by the Police on aforesaid First Information Report against accused Abdul Gafoor, relating to offence punishable under Section 302 I.P.C. and check report (Ext.A-6) was prepared by the Police. Also, necessary entry was made in the general diary (a copy of which is Ext.A-7). The investigation was taken up by Station House Officer Faini Singh. Sub Inspector Ompal Singh went to the place of incident. He took the dead body of Faujia alias Firoza in his possession and prepared inquest report (Ext.A-3). Other necessary papers were also got prepared by the police and dead body was sent in a sealed condition for postmortem examination. P.W.1 Dr. Rajeev Hatwal conducted postmortem examination on 18.09.1988 at 3 P.M. on the dead body of Faujia alias Firoza. He recorded four incised wounds and opined in the autopsy report (Ext.A-1) prepared by him that the deceased had died due to shock and haemorrhage on account of ante mortem injuries suffered by her. The Investigating Officer interrogated the witnesses, inspected the spot, prepared site plan (copy Ext.A-11) and submitted charge sheet (Ext.A-12) against accused / respondent Abdul Gafoor for his trial in respect of offences punishable under Sections 302 and 309 I.P.C., as it was found that the accused / respondent was also suffering with the incised injuries which were recorded by Dr. Ashok Khatri (P.W.4), who prepared injury report (Ext.A-5 on 18.09.1988). (4) The Chief Judicial Magistrate on receipt of charge sheet, appears to have committed the case to the court of sessions for trial, after giving necessary copies as required under Section 207 Cr.P.C.. The learned Sessions Judge, Pauri Garhwal, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C., for committing the murder of Faujia alias Firoza and one under Section 309 I.P.C. for attempting to commit suicide. The accused / respondent Abdul Gafoor pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. Rajeev Hatwal, who conducted post mortem examination on the dead body of deceased Faujia alias Firoza, P.W.2 Matbar Singh, P.W.3 Dhan Singh, both witnesses of fact and P.W.4 Dr. Ashok Khatri, who recorded injuries on the person of the injured accused / respondent. The Investigating Officer appears to have not examined by the prosecution as the counsel for the accused before the trial court admitted the genuineness of all the documents prepared during investigation. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which he admitted that in September 1988, he (accused /respondent Abdul Gafoor) was tenant in the house of Matbar Singh (P.W.2). Rest of the evidence was alleged by him to be false, but at the end of his statement, recorded under Section 313 Cr.P.C., the accused / respondent stated that he was third husband of Firoza (deceased). It is further alleged by him that during his absence someone used to come to his wife. Lastly, he has alleged that his wife was FAISA (woman of bad character). However, no evidence was adduced on behalf of accused in defence. The trial court after hearing the parties found the accused guilty of offence punishable under Section 309 I.P.C., but acquitted him of the charge of offence punishable under Section 302 I.P.C. The trial court after hearing on sentence, sentenced the accused / respondent Abdul Gafoor under Section 309 I.P.C. to the period already undergone in jail, by him. The State (appellant) aggrieved by acquittal of accused / respondent from the charge of offence punishable under Section 302 I.P.C. preferred this appeal before Allahabad High Court where it is filed on 13.05.1991. The leave was granted by said court on 17.07.1992 and appeal was admitted. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. Notices were went to the accused / respondent, which are received back with the report that that he is not living in the given address. In the circumstances, Sri T.S. Phartiyal was appointed as Amicus Curiae to assist the court on behalf of the respondent. (5) Before further discussions, we would like to mention here the ante mortem injuries found on the person of deceased Faujia alias Firoza by P.W.1 Dr. Rajeev Hatwal, who prepared autopsy report (Ext.A-1) after postmortem examination on 18.09.1988 at about 3 P.M., Following are the ante mortem injuries found on the dead body of the deceased:- (i) Incised wound oblique on the right side of the lower end of the face 2 cm x ¼ cm x skin deep. (ii) Transverse incised wound 9cm x 3 cm x viscera deep on the upper abdomen about 7 cm above the umbilicus. Blood oozing out. (iii) Incised wound 4 cm x 1 cm on the back of the left hand. (iv) Incised wound 1 cm x ¼ cm parallel to no. 3. On internal examination of abdomen incised wound was found 3 cm x ¼ cm x cavity deep on the outer wall of the stomach. In the liver also an incised wound measuring 9cm x 3cm x 4 cm corresponding to ante mortem injury no. 2 was recorded. The Medical Officer who conducted the postmortem examination opined that death of the deceased had occurred due to shock and haemorrhage as a result of ante mortem injuries. (6) It is also pertinent to mention here the injuries found on the person of the accused / respondent Abdul Gafoor, who was examined on 18.09.1988 at 8.45 A.M., by Dr. Ashok Khatri (P.W.4), are mentioned in injury report (Ext.A-5). The said document shows following injuries on the person of accused / respondent found on the date of incident:- (i) Dressed wound found at upper abdomen dressing removed and wound noted as below:- (a) Size-2cm in length, 1-1/2 cm in width, 3cm in depth. (b) Direction-From lateral to medial, superior to inferior going posteriorly in depth. Muscle deep. (c) Upper abdomen right side medial end of wound 4 cm below xyplesten end 10cm above umbilicus. Lateral end 9 cm below and 6 cm medial to right nipple. (d) Margin-Fresh wound well defined margin. Incised wound bleed on touch. Two stitches given. (ii) Other wounds: (a) Haematoma with incised wound ¼ cm in width, 2 cm in length, skin deep. Direction medial to lateral and inferior on left side. Size of haematoma 2 cm in diameter. Bleed on touch, fresh, on stitch given. 12 cm above and lateral to umbilicus. (b) Incised wound .5 cm in length, 2 cm in width, skin deep 2 cm above obliquely placed on left side of abdomen. 1-1/2 cm lateral to midline. (c) Incised wound just above injury (b) .5 cm in length 2 cm in width obliquely placed. .5 cm lateral to midline. P.W.4 Dr. Ashok Khatri told the court that injury no. 1 suffered by accused / respondent could have been fatal if the accused / respondent not given medical treatment. This Medical Officer further told the court that injuries suffered by accused / respondent could have been caused by knife (Ext.1 recovered from the accused). (7) It is admitted to the accused / respondent Abdul Gafoor alias Abdul Gaffar that deceased Faujia was his wife. It is also admitted by him in his statement under Section 313 Cr.P.C. that he along with his wife Faujia (deceased) used to live in the house of Matbar Singh (P.W.2). (8) P.W.2 Matbar Singh in his examination told the court on oath that on 18.09.1988 at about 5 A.M. he heard shouts and went there along with other tenants and saw through the breaches of the doors of the room of accused / respondent that Firoza lying in pool of blood and moaning. He further states that accused / respondent was also sitting pressing his abdomen with his hand. The witness further told that the doors were closed from inside, and accused and deceased did not open the door even after it was knocked by the witness. He further told that then he sent his son Diwakar Singh (complainant) along with Dhan Singh (P.W.3) to Police Station to report the matter. P.W.2 Matbar Singh proved the handwriting of his son Diwakar Singh and thereby proved the First Information Report (Ext.A-2). He (P.W.2 Matbar Singh) is also witness of inquest report (Ext.A-3), prepared by the Police. He is also witness of recovery of knife and broken bangles from the room, where the incident occurred. (9) The statement of aforesaid witness Matbar Singh (P.W.2) gets fully corroborated not only by the medical evidence already mentioned above, but also from the statement of P.W.3 Dhan Singh, who has stated that on 18.09.1988 at about 5 A.M. he heard shouts from the room of Abdul Gafoor. According to this witness, the wife (deceased) of accused / respondent was crying BACHAO, BACHAO (save! Save!). The witness further states that he along with Diwakar Singh and landlord Matbar Singh and one neighbour went towards the room of the accused / respondent and peeped through the breaches of the doors and saw wife of accused / respondent lying in pool of blood. The witness further narrates that the accused / respondent did not open the door even after it was knocked. The witness further told the court that doors of the room were closed from inside. The witness further states that it is only after the Police reached at the spot, the doors were got broken. After the room was opened, the witness saw that accused / respondent has had a knife injury in his abdomen also and he was sitting in the room. This witness is also witness of inquest report and recovery of knife (Ext.1) from the room of the accused. He has also proved that the pieces of bangles (Ext.2) were also recovered from the place of incident. (10) Strangely the trial court has believed the prosecution story to the extent that accused / respondent attempted to commit suicide and caused injuries (mentioned above, recorded by P.W.4 Dr. Ashok Khatri) to himself. However, he disbelieved the prosecution story of commission of murder of his wife by him on the ground that he had no motive to commit the crime. After scrutiny of the evidence on record, we found that the motive is not difficult to be found in the present case from the evidence adduced by the prosecution. P.W.3 Dhan Singh in his cross-examination has stated that in the house of the accused / respondent a person used to come to meet his (accused’s) wife and she used to go with him. It is further stated by this witness that due to this reason the couple used to fight. This witness has further stated that for some eight days accused / respondent was watching the activities of his wife and the person who used to visit his wife. This fact gets corroborated from the reply of accused / respondent which he gave in response to question no. 14 put to him under Section 313 Cr.P.C., wherein he states that someone used to visit his wife in a clandestine manner and his wife (Firoza) was FAISA (woman of bad character). In fact the commission of murder by accused and attempting to commit suicide in the present case are two inseparable and co-related parts of same transaction. The trial court has erred in law by accepting the one and disbelieving the another. (11) We think it just and proper to mention here that on examination of the material exhibits, recovered by the Police during investigation the forensic expert gave its report (Ext.A-4) that item no. 5 (Material Ext.1, Knife) contained human blood. The said report further reveals that on examination of KURTA, SALWAR, DUPATTA, recovered from the body of the deceased which contained blood stains, had disintegrated blood. It is also pertinent to mention here that P.W.1 Rajeev Hatwal has stated in the last sentence of his examination-in-chief that the ante mortem injuries found on the person of the deceased could have been caused by knife. (12) For the reasons as discussed above, after re-appreciating the entire evidence on record, and after hearing the learned counsel for the parties we are of the view that the prosecution has successfully proved not only the charge of offence punishable under Section 309 I.P.C. but also the charge of offence punishable under Section 302 I.P.C. against the accused / respondent Abdul Gafoor. The trial court has erred in law by holding him not guilty on the charge of offence punishable under Section 302 I.P.C.. Therefore, the appeal filed by the State deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 04.02.1991, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 42 of 1988 is set aside to extent the accused / respondent is directed to be acquitted form the charge of offence punishable under Section 302 I.P.C.. The accused / respondent Abdul Gafoor is convicted under Section 302 I.P.C.. After hearing on sentence, we sentence the accused / respondent Abdul Gafoor to imprisonment for life on the charge of offence punishable under Section 302 I.P.C.. The lower court record be sent back to the court concerned, who will take the accused / respondent into custody and send him to jail to serve out the sentence awarded by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) 02.06.2008 NS