Amar Saran, J. - (1.) -This criminal appeal has been filed from jail by the appellant Fadruddin alias Fariddudin alias Fardeen against the judgment and order of the Additional Sessions Judge, Fast Track Court No. 2, Ballia, dated 30.9.2005 convicting the appellant to imprisonment for life under Section 302, I.P.C. and a fine of Rs. 10,000. In default of payment of fine, the appellant was sentenced to further one year's additional imprisonment.
(2.) THE prosecution case was that the appellant used to reside with the informant Zakir Hussain in the informant's house in village Bastaura, because the appellant's father Akhtar Hussain (elder uncle of the informant) used to work in Delhi. On 9.9.2004 the appellant had returned home in an inebriated condition for which the deceased Sarfaraz Ahmad (uncle of the appellant and father of the informant) scolded him and asked him to take his food. This annoyed the appellant. However, the appellant was persuaded by his grand-mother Smt. Nejbunnisha to eat his dinner. In the night of 9.9.2004, the informant and his brother Muzaffar Hussain, his father, the deceased Sarfaraz Ahmad, and the appellant were sleeping on three adjoining cots outside the house. THE informant was sleeping on the same cot as his brother Muzaffar Hussain on a cot which was placed to the left of his father Sarfaraz Ahmad's cot. THE appellant's cot was placed on the right of the deceased Sarfaraz's cot. On 10.9.2004 at about 4-4.30 a.m. the appellant went inside the house on the pretext of drinking water and then returned after a while. At that time the informant was awake. Soon thereafter he started assaulting the deceased with a "daav" (a knife used for cutting a goat). On the alarm of the informant and his brother the appellant ran away. THE cries of the informant and his brother attracted Vakil Ahmad and Maqbool Ahmad to the place of incident. THE appellant had been recognised in the light of lantern by the witnesses. When the informant's mother did not come out inspite of the alarm raised, then he went inside her room to find his mother lying dead in a pool of blood with incised wounds on her body. The informant lodged a report of the incident at 7.15 a.m. at P.S. Rasara and a case under Section 302, I.P.C. was registered against the appellant at Crime No. 206/2004. The S.H.O. in-charge of the Police Station, Inspector Ram Prakash Bajpai P.W. 8 commenced the investigation of the case. He recorded the statements of the scribe of the F.I.R. Arun Kumar Singh and G. D. writer P.W. 6, H. C. Krishna Ram and also the statement of the informant Zakir Hussain. After that he proceeded to the place of incident alongwith some constables. After the preliminary inspection of the place of incident, he got the inquest of the two deceased prepared by H.C.P. Sri Shivji Goswami. He recorded the Section 161, Cr P.C. statements of the F.I.R. witnesses Muzaffar Hussain, P.W. 3, another son of the deceased, Vakil Ahmad, neighbour and Maqbool Ahmad. In their presence, he inspected the site and prepared the site plan (Ext. Ka-19). He collected plain and blood stained mud from the place of incident. In the house of the informant he also prepared the recovery memo of the wooden cot and cut out a piece of blood stained moonj (rope) which is knotted and tied together for lying on the bed, a bed sheet, a pillow and spectacles belonging to the deceased Sarfaraz Ahmad. He also collected plain and blood stained earth and also pieces of chatai (mat) on which the deceased Shahnaz Begum was lying and a kathari. He also prepared the recovery memos of other items such as lantern etc., and handed them over in the supurdagi of the informant. A search was made for the accused, and on receiving information that the accused was waiting to board a vehicle at Pradhanpur Chatti, the Investigating Officer arrested the accused on the pointing out of the informer at 3.30 p.m. on 10.9.2004. At the time of arrest, the appellant was wearing a shirt and carrying a gamchha which showed drops of blood. On the appellant's confession the Investigating Officer got a blood stained knife recovered under Section 27 of the Evidence Act and prepared its recovery memo (Ext. Ka-25). The Investigating Officer took the blood stained shirt and gamchha, and prepared its recovery memo (Ext. Ka-26) after calling for a fresh set of clothes for the appellant. On 11.9.2004 he recorded the statements of some inquest witnesses. After that he obtained the post-mortem report of the two deceased. The post-mortem examination conducted by Dr. R. N. Upadhyay, P.W. 7 at District Hospital, Ballia on 10.9.2004 at 4.30 p.m. showed that the deceased was about 40 years in age with an average body built, both eyes were opened, mouth was half open, rigor mortis was present on the upper and lower limbs. He found the following ante-mortem injuries on the deceased : (1) Sharp cut injury 10 cm. x 3 cm. x scalp and bone deep extending inside brain matter over (right) forehead and (right) temple upto (right) ear. (2) Sharp cut injury 4 cm. x 3 cm. x scalp and bone deep over (right) parietal region 6 cm. from (right) ear. (3) Sharp cut injury 6 cm. x 2 cm. scalp deep and bone deep over occipital region, 6 cm. from injury No. (2). (4) Sharp cut injury 3 cm. x 2 cm. over (right) sub mandibular region, 5 cm. from (right) corner of mouth. (5) Sharp cut injury 10 cm. x 6 cm. over anterior aspect of neck cutting larynx, oesophagus and underlying structures. (6) Sharp cut injury 5 cm. x 2 cm. over ventral aspect of (right) hand 5 cm. from right wrist, exposing bones after cutting vessels and tendons. (7) Sharp cut injury over ventral aspect of right hand which had lacerated the little finger and was 5 cms. below injury No. 6. Internal examination showed that both chambers of the heart were empty, stomach contained about 3 oz. semi-digested food and the small intestine contained liquid and gases and the large intestine contained faecal matter and gases. Death had taken place 16 hours prior to post mortem examination due to injuries on the dead body, which according to the doctor were sufficient for causing his death in the ordinary course. However, he admitted that it was possible that the deceased may have been murdered at 4-4.30 on the same day.
(3.) HE thereafter conducted post mortem on the dead body of Shahnaz Begum. HE found that the deceased was 38 years in age. HE also found that the deceased had an average body built and height and that both eyes were partially closed, the mouth was open and the tongue protruded from a sharp cut injury. Rigor mortis was present on the lower and upper part of body. HE noted the following ante-mortem injuries on the deceased Smt. Shahnaz Begum : (1) Sharp cut injury 10 cm. x 5 cm. x skin and bone deep extending inside cavity over right forehead extending from (left) eye to right temple to 4 cm. from right ear. (2) Sharp cut injury 4 cm. x 2 cm. scalp deep and bone deep over mid of head 10 cm. from root of nose. (3) Sharp cut injury 5 cm. x 2 cm. over lower part of ear lobule cutting lobule and underlying bones of the ear. (4) Sharp cut injury 2 cm. x 3 cm. over right sub auriole region just below to injury No. 3. (5) Sharp cut injury 10 cm. x 2 cm. x skin deep and underlying muscle or bone deep extending from left face to right face 2.5 cm. below from both eyes. (6) Sharp cut injury 10 cm. x 6 cm. over anterior aspect of neck cutting layrynx, oesophagus, underlying vessels. (7) Abraded contusion 3 cm. x 2 cm. anterior part of left shoulder. There was a pale cut injury in the brain corresponding to the external injury. The stomach contained about 3 oz. semi-digested food, small intestine contained liquid and gases and faecal matter were present in the large intestine. The time of death was 16 hours prior to post mortem. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante mortem injuries. The cause of death was a sharp edged weapon. HE denied that the injuries could have been caused due to two weapons. The said weapon was not produced before him, and he could not say from what sharp edged weapon, the injuries were caused. HE admitted that the injuries could be in the result of striking with a daav. Rigor mortis had commenced and was present in the hand and legs. After examining the semi-digested food in the stomach, it could be concluded that the death could have taken place two or three hours after taking of a meal. On 16.9.2004 the Investigating Officer obtained the original inquest report, post mortem report of the deceased Sarfaraz Ahmad and Smt. Shahnaz Begum. Thereafter after completing all the formalities, he recorded the Section 161, Cr. P.C. statements of all the formal witnesses. HE also submitted a charge-sheet No. 130/2004 in Court (Ext. Ka-27). A charge was framed against the appellant on 4.3.2005 by the trial court under Section 302, I.P.C. for committing two murders. HE pleaded not guilty to the charge and claimed trial. We have heard Dr. Abida Saiyed, learned amicus curiae for the appellant and Sri M. L. Shukla learned A.G.A. for the State.;