- (1.) THE present appeal has been filed challenging the judgement and order dated 31.10.1981 passed by I Additional Sessions Judge, Kheri in Sessions Trials No. 166 of 1980 and 517 of 1980 whereby the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. The Sessions Judge has acquitted other accused, namely, Rauf Khan, Saghir Khan, Ashiq Khan, Rafiq Khan and Ishwardin on the ground that they were not found guilty of the charges levelled against them. The State also did not prefer any appeal against their acquittal.
(2.) ACCORDING to the prosecution case, the incident had taken place on 3.6.1979 at about 8 a.m. when Smt. Shahjahan, PW -1, Ali Raza, deceased, Khushal Ram PW -2, Gajodhar PW -3 and Babu Chamar were going to Lakhimpur Kheri from their village on a cart. Nattha and Niyaz were following them on a cycle. When they reached near galiyara at about 9 a.m. near the field of Sadhu Ram Shukla situate on the outskirt of the village Kodhaiya, accused Yaqub armed with Banka and others carrying various arms emerged from the shrubs. Accused Ashiq Khan had inflicted a kanta blow on the temporal region of Ali Raza and Ali Raza jumped down the cart and fled towards south. He was chased by the accused persons and was assaulted. Thereafter accused Yaqub beheaded Ali Raza by the blow of banka. They had also looted a sum of Rs. 800/ - in cash and a wrist watch from the body of Ali Raza. Witnesses tried to search the severed head of Ali Raza but they could not trace out the same. Bashiruddin, Azam, Ram Singh and Khushal Master (PW -2) reached the police station Fardhan for lodging the F.I.R. The report could not be lodged at the police station because the appellant Yaqub had deposited the severed head and blood stained banka at the police station. Later on, Smt. Shahjahan, PW -1 had instituted a criminal complaint in the court of I Special Judicial Magistrate, Kheri on 26.10.79 which gave rise to S.T. No. 166 of 1980. The S.T. No. 517 of 1980 was proceeded with on the basis of the charge sheet (Ex. Ka -15) submitted by the police against Yaqub. The case of the prosecution was that Yaqub, the accused, on 3.6.1979 lodged F.I.R. (Ex. Ka -5) at P.S. Fardhan at 1:30 p.m. and deposited the blood stained banka and severed head of Ali Raza, wrapped in Angauchha at the police station. Head Constable Narottam Singh PW -8 who was posted as Clerk Constable at P.S. Fardhan prepared chik F.I.R. on the dictation of the accused Yaqub. He had also made G.D. entry (vide copy Ex. Ka -16). SI Siya Ram had taken the possession of the severed head, Angauchha and banka and prepared memo thereof which is Ex. Ka -6, Ka -7 and Ka -8. He also prepared inquest report of the severed head of Ali Raza, Khaka Head, Challan Head which are Ex. Ka - 9. He also prepared recovery memo in respect of Kurta, Pyjamah and Sadri which is Ex. Ka -11. He also collected blood stained earth from the place of occurrence which is Ex. Ka -10. The site plan made by him is Ex. Ka -24. He recorded statements of Khushal Ram PW -2, Gajodhar PW -3, Ram Das (PW -5), Sheo Prasad and certain other witnesses. He also recorded statement of Smt. Shahjahan PW -1. Thereafter, since SI Siya Ram was transferred, the investigation was entrusted to PW -7 Narendra Mohan Singh, who recorded statements of the witnesses and submitted charge sheet which is Ex. Ka -15
(3.) PW -6 Dr. R.C. Joshi had conducted autopsy on the head of the deceased Ali Raza and noted following ante mortem injuries thereon: 1. Incised wound over the left side head top 7 cm x 3 cm x bone deep, underneath bone cut. 2. Incised wound over left cheek, 6 cm x 2 cm x bone deep, underneath bone cut, 3 cm. in front of left ear. 3. Incised wound right side head including right ear, measuring 10 cm x 4 cm x cranial cavity deep. Brain matter coming out. 4. Incised wound over neck through and through at the level of third cervical vertebrae measuring 32 cm x through and through, cutting all the structures including the spinal cord. 5. Incised wound over back of head 9 cm x 3 cm x bone deep. 1 cm above injury no. 4. In the opinion of the doctor, duration of death was about one day which was caused due to shock and haemorrhage as a result of severance of head from the body.;