(1.) In the instant case, the criminal law was set into motion on the complaint of Raees Ahmad s/o. Jameel Ahmad alias Kallu r/o. Meerut, which (complaint) was addressed to the Inspector In-Charge Kotwali, Mallital, Nainital. According to the informant, he came to know through the newspaper 'Dainik Jagran' of 20.09.2001 that the dead body of his brother-in-law Abdul Kareem was found in Mayur Hotel, Nainital. When Raees Ahmad enquired from the wife of Abdul Kareem, she (Naeema) told that Abdul Kareem brought Rs. 10,000/- on 09.09.2001. Prior to 09.09.2001, Abdul Kareem took Rs. 60,000/- from home and paid the money to Sher Mohammad r/o. Meerut. Naeema told that Abdul Kareem was doing the business with Sher Mohammad, who was the resident of the same mohalh (locality) in which Abdul Kareem resided; Abdul Kareem and Sher Mohammad were good friends. On 11.09.2001, Shakeel Ahmad and Nafees saw Abdul Kareem in the company of Sher Mohammad at Sohrab Gate Bus Station; On being enquired, Abdul Kareem said that they were going to Nainital. On coming to know of the death of Abdul Kareem, informant Raees Ahmad along with Merajuddin, Arshad Ali and Wali went to Mayur Hotel at Nainital, to verity the death of Abdul Kareem. When the manager and waiter of the hotel were shown the photographs of Abdul Kareem, they confirmed Abdul Kareem's death saying that Sher Mohammad and Abdul Kareem stayed together in the hotel in the night. The manager and waiter said that Sher Mohammad also stayed in the hotel on 06.09.2001 earlier. The informant suspected that Sher Mohammad killed Abdul Kareem for the sake of money. On the basis of the said complaint, chik FIR was lodged in P.S. Mallital, Nainital, on 20.09.2001 at 07:35 p.m., which was registered as case crime No. 1048/2001 under Section 302 IPC. The occurrence took place sometimes in the intervening night of 12/13.09.2001, and since the informant came to know of the death of Abdul Kareem only through the newspaper published in Meerut, therefore, there appeared to be no delay in lodging FIR..
(2.) After the investigation of the case, a charge sheet against Sher Mohammad was submitted for the offence punishable under Section 302 IPC. When the trial began and prosecution opened it's case, a charge for the offence punishable under Section 302 IPC was framed against Sher Mohammad, to which he pleaded not guilty and claimed trial. Prosecution examined nine witnesses, viz., PW 1 Godhan Singh (Manager, Mayur Hotel), PW 2 Raees Ahmad (informant), PW 3 Naeema (wife of deceased), PW 4 Shakeel Ahmad (witness of having last seen victim in the company of accused), PW 5 Puran Singh (bearer of Mayur Hotel), PW 6 S.I. Umesh Tiwari, PW 7 SSI Rakesh Chandra Thapaliyal, PW 8 Sheeldhar Singh, SDM, Etmatpur, Agra (Identification Magistrate) and PW 9 Inspector Bachan Singh Rana (Investigating Officer). Thereafter, the incriminating evidence was put to the accused under section 313 Cr.P.C. in detail, in which he denied the allegations and said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Sessions Judge, Nainital found Sher Mohammad guilty of the offence punishable under Section 302 IPC. He was accordingly convicted and sentenced appropriately. Aggrieved against the said order of conviction and sentence, present Criminal Appeal was preferred.
(3.) PW 1 Godhan Singh said that the accused stayed in Mayur Hotel on 12.09.2001, in the fake name of Raju s/o. Budh Prakash r/o. Main Market, Bareilly. Another person (victim) accompanied Raju. The other person was introduced by Raju as his brother. They stayed together in Room No. 9 of Mayur Hotel, Nainital. When they were requested to make an entry in the hotel register, Raju (pseudonym) asked PW 1 to fill up the register himself. Waiter Pooran Singh (PW 5) made an entry in the register. PW 1 requested Raju (fake name) to fill up Form No. 171. Accused filled up his name, his father's name and put in his signatures. Other columns were filled up by PW 1. The form was proved by PW 1 as Ext. Ka-1. Entry in the hotel register at serial No. 924 was made in the (fake) name of Raju and the entry was proved as Ext. Ka-2. PW 1 also said that Raju and the other person entered into room No. 9 in his presence. On the selfsame day (12.09.2001), Raju came to PW 1 at 09:30 p.m. and said that his brother was unwell. PW 1 said that he was going to market and requested PW 1 to send a blanket in the room. Raju (pseudonym) also said that they might stay in the hotel for two days. Waiter (PW 5) carried a blanket in room No. 9 and when PW 5 came back to PW 1, he said that the other person (victim) was in the bathroom. On 13.09.2001, none of them came to vacate the room till 10:00 a.m. PW 1 thought that they would be staying further in the hotel and therefore, took no notice of their checkout. When none of them came to checkout till the evening, PW 1 found room No. 9 locked from outside. The window of the room was got opened. PW 1 saw that a man was lying on the cot. He was called, but he did not wake up. It was 07:00 p.m. It appeared that the person was dead. An information to this effect was given in P.S. Mallital. Police officials came to the hotel, broke open the lock, entered into the room and found that the other person (victim) was dead. No mark of injury was seen. Inquest report (Ext. Ka-3) was prepared. When the informant Raees Ahmad along with three people came to Nainital on 20.09.2001, Raees Ahmad showed two photographs. The real identity of Raju as Sher Mohammad was disclosed. The investigating officer took Form No. 171 (Ext. Ka-1) and also took page Nos. 900 to 933 of the hotel register (Ext. Ka-6) in his possession. Accused Sher Mohammad stayed earlier in the hotel on 06.09.2001 also in room No. 7. PW 1 went before the Identification Magistrate and he correctly identified accused Sher Mohammad in jail and subsequently in the court. In the cross-examination, PW 1 said that he served in the hotel for three years and left his job thereafter. Mayur Hotel was sold to someone else. Since Raju was seen by him in the hotel earlier, therefore, PW 1 wrote his name as Raju in Ext. Ka-1. The date was also filled up by Raju. Earlier room No. 7 was allotted to them, which was subsequently changed to room No. 9. The cutting in the date was made by Raju (pseudonym). PW 1 as well as PW 5 were called by the police on 20.09.2001 in police station. The people who came from Meerut, showed photographs to the police. PW 1 told to the Identification Magistrate (PW 8) that he had come to identify the accused.;