IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1367/2001 (Old No. 44 of 1998) Musharraf ….. Appellant. Versus State …… Respondent. Smt. Pushpa Joshi, Advocate for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Dated: March 31, 2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal under Section 374(2) Cr.P.C. arises out against the judgment and order dated17.12.1997, passed by Addl. Sessions Judge (E.C. Act), Dehradun in S.T. No. 194 of 1996, convicting and sentencing the appellant Musharraf U/S 302 I.P.C. for life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo R.I. for three months. 2- Brief facts of the prosecution case are that the deceased Smt. Sahida was the sister of Khurshid. Sahida was married with Nashim in village Saarai P.S. Jwalapur District Haridwar about twenty years ago. Out of their wedlock four children, Washim, Nasrin, Washima and Sareen, were born. Smt. Sahida was a bad-character lady. About two months prior to the incident, accused Musharraf kidnapped Smt. Sahida along with her children to his house and they used to live together in village Shyampur Kangadi on a rented house. Khursid, brother and Naseem husband of Smt. Sahida made search for her and on 6.10.1995 they 2 knew her whereabouts, hence they went at the house of Musharraf and after their persuation, Smt. Sahida along with her children agreed to return to her husband’s house. At about 11.30 A.M. when all these persons were going side by side of railway line towards Veerbhadra Railway Station and reached behind J.J. Glass Factory, accused Musharraf reached there along with a meat-cutting knife and asked Smt. Sahida why she is leaving his company, he will not spare her alive. At this the accused Musharraf gave kife-blows on the neck and face of Smt. Sahida and after sustaining injuries Smt. Sahida fell down and died. The incident was witnessed by Khurshid, Naseem, and all the four children of Smt. Sahida. After committing the murder of Smt. Sahida, the accused ran away towards bypass. The oral information of the incident was lodged by Khurshid at I.D.P.L. Police Station Rishikesh at 12.30 P.M. on the day of incident itself. On the basis of above information, chick F.I.R. (Ext. Ka.9) was drawn at the police station, and a case was registered against accused Musharraf in the G.D. report No.21, carbon copy of which is Ext. Ka.10. 3- The I.O. visited the place of occurrence and seized the simple and blood-stained earth vide memo Ext. Ka.1. He also took into possession a shawl and chappal of the deceased, vide memo Ext. Ka.2. The I.O. also prepared site-plan, Ext. Ka.6 and performed inquest on the dead body and prepared inquest report, Ext. Ka.3. The dead body was sealed and sent for post mortem after performing requisite formalities of preparing sketch-dead body, challan- laas, etc. 3 4- The autopsy on the dead body of deceased Smt. Sahida was performed by Dr. A. Nagaiz, at Doon Hospital Dehradun on 7-10-1995 at 3.00 P.M. The doctor found the following ante- mortem injuries on the person of the deceased- 1- Large incised wound around the neck measuring 30cm x 14cm x bone laryings pharyix deep, encircling whole of the neck except 4cm of uncut area on right side of neck. All the muscle vessels, nerves, trachea laryinx cut and exposed in front of neck, while servical spine on back is also cut. 2- Incised wound 8cm x 4cm x bone deep on left cheek extending from 4cm away from angle of mouth and connecting the injury no.1, below the angle of mandible left- mandible is cut underneath. 3- Incised wound 8cm x 5cm x bone deep on back of neck, starting behind the middle of left ear and connecting injury no.1, in posterior part of neck, 4- Incised wound 2cm x 1cm over right part of forehead just above bridge of nose. 5- Incised wound 3cm x 1cm x muscle deep over left angle of mouth. 6- Incised wound 3cm x 1cm xmuscle deep on back of left forearm. 7- Incised wound 4cm x 2cm on palm of left hand on base of fingers. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries. 4 5- The investigating officer, after completing the investitation submitted charge sheet, Ext. Ka.8, against the accused. 6- The C.J.M. Dehradun, vide his order dated 3-8-1996 committed the case to the court of sessions for trial. 7- The learned Addl. Sessions Judge, Dehradun framed charge U/S 302 I.P.C. against the accused Musharraf, who pleaded not guilty and claimed his trial. 8- The prosecution, in support of its case, has produced 8 witnesses, of these, P.W.1, is Khurshid, brother of the deceased and complainant of the case, P.W.2, Naseem husband of the deceased, P.W.3, Iqram, P.W.4, Waseem, son of deceased, P.W.5, Constable Mohd. Alam, P.W.6, Raj Bahadur, P.W.7, Dr. A. Nagaiz, and P.W.8, S.I. Chaman Singh. 9- The accused in his statement U/S 313 Cr.P.C. has denied the prosecution case and has alleged that he has been falsely implicated due to a quarrel which took place between him and Khurshid in connection with a poultry-form. The accused also examined D.W.1, Furkan in his defence. 10- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire material on record, convicted the accused/appellant Musharraf U/S 302 I.P.C. and sentenced him to undergo life imprisonment and to 5 pay a fine of Rs. 1,000/- and in default of payment to further undergo three months R.I. 11- Feeling aggrieved, the appellant Musharraf has preferred this appeal. 12- We have heard Smt. Pushpa Joshi, learned counsel for the appellant and Mr. S.S. Adhikari, learned A.G.A. for the State and perused the record. 13- Learned counsel for the appellant has submitted that P.W.2, Naseem, husband of deceased and P.W.3, Iqram are the main witnesses of the occurrence, but they have not supported the prosecution case, therefore, the whole prosecution case becomes highly doubtful. Learned counsel also submitted that the remaining witnesses P.W.1, Khurshid is the brother of the deceased and P.W.4, Waseem is the son of the deceased and they are interested witnesses, hence their testimony cannot be believed, as the two main witnesses did not support the prosecution case. Learned counsel further submitted that P.W.4, Waseem is a child witness and his testimony has no relevance as he has contradicted with P.W.1, Khurshid on important aspects. 14- We have considered the entire evidence on record. Certainly P.W.2, Naseem, husband of the deceased, and P.W.3, Iqram have not supported the prosecution version and they were turned hostile, but merely on this ground the prosecution case cannot be thrown out. Beside these two witnesses, there is eyewitness account of P.W.1, Khurshid and 6 P.W.4, Waseem. Both these witnesses have fully supported the prosecution version. 15- P.W.1, Khurshid, brother of the deceased has narrated the natural story of the incident. He has stated on oath that two months prior to the incident accused Musharraf had kidnapped his sister Smt. Sahida along with her children. They were searching her and then they came to know that accused along with his brother and children was living at Shyampur Kangadi in a rented house. On this information, he and his sister-in-law Naseem went to Shyampur Kangadi. There they persuaded Smt. Sahida and they agreed to come with them. She alsong with her children accompanied them. This witness further deposed that when they crossed the railway line behind Glass Factory, accused Musharraf came their with a meat-cutting-knife and asked Sahida she is leaving his company therefore he would not spare her alive. Telling this, accused Musharraf assaulted Smt. Sahida with the said knife. Smt. Sahida fell down after being injured by the knife blows given to her by accused Musharraf. Thereafter accused Musharraf cut down the neck of Smt. Sahida with the knife. Smt. Sahida died at thre spot. This witness specifically deposed that the incident has occurred at 11.30 A.M. on 6.10.1995. They tried to catch-hold of the accused but he fled away from the bypass. Thereafter this witness gave oral information at P.S. Rishikesh. This witness further deposed that the police had prepared inquest report in his presence at the spot and the dead body was sealed and sent for post mortem. This witness has been cross-examined at a great length, but nothing 7 material has come out from it, which may render his testimony unreliable. 16- The another eyewitness of the incident is P.W.4, Waseem. At the time of recording his statement he was 11 years of age. Before recording his statement the court has put some general questions to the boy and he has replied the questions in a positive way and the court formed opinion that he is capable of giving true version of the occurrence. Thereafter this witness has stated that on the day of occurrence his father and his maternal uncle came to their house at 11.00a.m. and both of them had asked his mother to come to her home. Thereafter his mother, he, and his sisters Nazrin, Washima and Chhoti went with his father and maternal uncle. When they were going to station via railwlay line, at Lahon accused Musharraf came there and brought out a knife and asked his father and maternal uncle to go away, otherewise he would kill them. Thereafter he gave knife blow at the stomach of his mother. His mother caught the knife due to which she sustained injury on her finger. Then accused Musharraf cut down the neck of his mother and she died at the spot. The accused Musharraf fled away along with the knife. The above statement of this witness fully corroborates the prosection version. In our opinion this witness has narrated the true version. 17- Learned counsel for the appellant has argued that this witness has given a different version about the act done by the accused at the time of actual occurrence. This witness did not tell that accused Musharraf asked Smt. Sahida not to 8 leave his company otherwise he will kill her, rather he has told that the accused asked Naseem and Khurshid to go away otherwise he would kill them. Learned counsel also suggested that P.W.1, Khurshid has simply stated that accused Musharraf attacked on Smt. Sahida with knife whereas P.W.4, Waseem has deposed that accused Musharraf gave knife blow on the stomach of his mother and when his mother caught hold of the knife her finger was cut down. According to learned counsel these are material contradictions in the statements of both these witnesses, hence, their testimony cannot be relied upon. 18- We do not find any merit in the above submission of learned counsel for the appellant. It is well settled position of law that a boy of 11 years of age witnessing ghastly murder of his mother, his agitated mental state should be kept in mind by court. Minor inconsistencies in his evidence are inconsequential. Court should be cautious to find whether his testimony was tutored or not?. Upon a careful consideration of the evidence of child witness we find that he has given a natural version of the incident. He has also deposed that the accused after sustaining injuries to his mother has cut down her neck by the knife and this much statement has also been given by P.W.1, Khurshid. P.W.4, Waseem has given the specific version that the accused cut down the finger of the deceased and he also gave knife blow on the cheek and thereafter neck was cut down. The above statement of this witness is fully supported by the medical version. The doctor found injury No.1, incised wound 30cm x 14 x bone laryings pharyix deep, encircling whole 9 of the neck except 4cm of uncut area on right side of neck. All the muscle vessels, nerves, trachea laryinx cut and exposed in front of neck, while servical spine on back is also cut. Injury No.2 was incised wound 8cm x 4cm x bone deep on left cheek and other injuries were also incised wounds on neck, forehead, mouth and fingers. In this way the deposition of P.W.4, Waseem is fully corroborated by the medical evidence. There is no contradiction in the statement of P.W.1, Khurshid and P.W.4, Waseem on the point of causing injuries by the accused on the person of Smt. Sahida. The deposition of P.W.1, Khurshid is that accused Musharraf attacked on Smt. Sahida with the meat- cutting knife and when she fell down by the injuries on her person then accused cut down her neck by the said knife. Therefore, in view of the aforementioned facts and circumstances of the case we are fully convinced that the minor witness P.W.4, Waseem has given a true version of the occurrence. He is not a tutored witness. No plausible explanation has been put forth by the defence as to why these witnesses would falsely implicate the accused Musharraf in the crime. 19- The accused/appellant has tried to explain his innocence by examining D.W.1 Furkan. This witness has given the version that on 6.10.1995 he had gone to the house of Khurshid and thereafter he went to the house of accused Musharraf. He had reached to the house of accused at 11.00 a.m. and remained there for about two hours in order to purchase eggs and chicks. This witness has tried to make out a case that at the time of occurrence, i.e. 11.30 a.m. he was making 10 transaction with the accused. He seems to be a got up witness and has been produced before the court only with a view to show that accused Musharraf was not present at the scene of occurrence. No reliable corroborative evidence has been adduced by the accused and the plea of alibi, tried to be taken by the accused/appellant, could not be established by the cogent and reliable evidence. Therefore, the interested statement of this witness cannot be believed. 20- The defence story further falls on the ground for the reason that there was no occasion with the complainant to concoct a false case against the accused, as the F.I.R. of the incident was lodged at the police station without any delay. The incident is said to have taken place at 11.30a.m. whereas the F.I.R. was lodged at the police station at 12.30 a.m. the same day. The distance between the place of occurrence and the police station is shown to be one kilometer, therefore, it is amply proved that prompt F.I.R. was lodged in the case and there was no occasion for false implication. 21- The motive assigned to the accused/appellant for commission of crime is that the accused Musharraf had kidnapped Smt. Sahida from the house of Naseem (husband of the deceased) and started living with her and her children in Shyampur Kangadi in a rented house and when Khurshid brother of deceased and Naseem husband of deceased, came to know about the whereabouts of Sahida they came there and they got ready her to go to the house of her husband and when they left the house of accused 11 Musharraf and reached near railway line accused being annoyed by the departure of Smt. Sahida, he committed the murder of Smt. Sahida. The accused/appellant did not want that Smt. Sahida should leave his house and this was the strong motive with the accused to commit the murder of Smt. Sahida. 22- It is also pertinent to mentin here that although P.W.1, Khurshid and P.W.4, Waseem are brother and son respectively of the deceased but it is well settled principle of law that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. We have considered the evidence of both the eyewitnesses in the case and we find that their evidence is trustworthy and credible. In not supporting the prosecution case by P.W.2, Naseem and P.W.3, Furkan, does not affect the veracity of the truthful and natural evidence of other eyewitnesses, i.e. P.W.1, Khurshid and P.W.4, Waseem. We do not find any ground to interfere with the fiding arrived at by the learned trial court. 23- For the foregoing reasons we do not find any merit in this appeal and the same is liable to be dismissed. 24- Accordingly the appeal is dismissed. The impugned judgment and order passed by the trial court is upheld. 25- The accused/appellant is on bail. His bail bonds are cancelled and sureties discharged. He 12 shall be taken into custody forthwith, in order to serve out the sentence passed against him by the trial court. 26- Let the record be transmitted to the trial court for compliance. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB 13