Decided on April 10,2013

Murtja Appellant


- (1.) By the judgment under appeal, appellant Murtaza has been convicted for an offence punishable under Section 302 of the Indian Penal Code and has also been sentenced appropriately. In the instant case, one Shan Ilahi died of ante mortem injuries, six in number, as were reported in the post mortem report prepared by Dr. B.K. Singh, who deposed as PW5. In the post mortem report, it was stated that the victim had received four ante mortem incised wound injuries and two abrasions. PW5, in course of tendering evidence, held out that incised wounds, as were received by the victim, could be caused by a sharp-edged weapon. The incident occurred around 11:00 a.m. of 30th January, 2006. In respect thereof, the First Information Report was lodged by the brother of the victim, Suleman (PW1) at about 00:45 p.m. of 30th January, 2006. In that, it was stated that it is appellant Murtaza, who inflicted the injuries on the victim by a sword like weapon and, in consequence thereof, victim died. In the First Information Report, it was stated that, apart from PW1, one Mohd. Islam (PW2) also witnessed the incident. It appears that the appellant was taken into custody, but the date and time of taking the appellant into custody is not readily available. It appears to be the contention of the prosecution that, while the appellant was in custody, he disclosed the whereabouts of the murder weapon and that disclosure led to recovery of a sword like weapon. There is no dispute that the prosecution did not make any attempt to establish that the recovered weapon was used as the murder weapon, inasmuch as, the recovered weapon was not sent for forensic examination, nor any of the prosecution witnesses stated before the court below that the recovered weapon was used for commission of the crime. The prosecution relied upon the direct eyewitness account given by PW1 and PW2. The learned court below has accepted the evidence so tendered in order to convict the appellant.
(2.) Before us, Senior Counsel Mrs. Pushpa Joshi submitted that the court below erred in accepting PW1 and PW2 as eyewitnesses. She submitted that PW1 and the victim started from their respective homes around 10:00 a.m. in the morning and the victim died around 11:00 a.m., i.e. about one hour after he had left his home. She submitted that, according to PW1, before leaving his home, victim had taken some food, but, when the post mortem was conducted, it transpired that the stomach of the victim was empty. It was submitted that the said state of evidence would lead to conclusion that PW1 is not such a witness, who is normally expected to speak the truth at all times. In that background, Mrs. Pushpa Joshi submitted that, in cross-examination, PW1 held out that he had taken the victim at the hospital and the police had come to hospital; whereas, PW2 held out that the police had come to the place of incident and had taken the victim to the hospital. It was submitted that in view of such contradiction in the most crucial part of the incident, in the background of the nature of the person PW1 is, as depicted above, it would not be safe to proceed on the basis that PW1 and PW2 were, in fact, eyewitnesses.
(3.) Mr. D.K. Sharma, appearing on behalf of the prosecution, submitted that there is no hard and fast rule that, if a person had taken some food, undigested food will be found in his stomach at the time of his post mortem. It was submitted that, in fact, PW1 had stated that the police came at the place of incident, police lifted the victim and, at the same time, he had stated that the victim was taken to the hospital and, in the hospital, police had come. The learned counsel submitted that, if the evidence of PW1, a landless daily-wage mazdoor, is considered in totality, it will be crystal clear that the police came to the place of incident; police lifted the dead body; and thereafter, the dead body was taken to the hospital, where also, police did some work pertaining to the incident in question. The fact remains that the inquest report was prepared at the hospital. Mr. D.K. Sharma, therefore, submitted that, in such circumstances, there is really no contradiction, far less any significant contradiction, in the evidence given by PW1 and PW2.;

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