- (1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. PC.), is directed against the judgment and order dated 14-09-1993, passed by learned Additional Sessions Judge, Roorkee, in Sessions trial No. 525 of 1988, whereby accused / appellant Liyakat S/o Shahid has been convicted under Section 302 of the Indian Penal Code, 1860 (here inafter referred as I. PC.) and sentenced to undergo imprisonment for life.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that accused/appellant Liyakat S/o Shahid @ Sayeed was resident of Village Kelhanpur of tehsil Roorkee, District Saharanpur (now part of District Haridwar ). Deceased Liyakat S/o Abdulla was also resident of the same village, who developed illicit relations, about 3-4 months before the date of incident, with wife of accused / appel lant Liyakat. About 4-5 days before the incident, wife of accused / appellant Liyakat left with deceased Liyakat along with one child, leaving six other children in the house of the accused / appellant. On 28-05-1988, at about 10:00 -10:30 A. M. , deceased Liyakat (S/o Abdulla) came to the house of accused / appel lant Liyakat. Thereafter, at 11:30 - 12:00 noon, accused / appellant Liyakat came out from his house and was looking nerv ous. Many villagers, including P. W. 5 Naseeran, at that time were sitting un der a Neem tree. When one Sakoora (since died) asked as to why accused / appellant Liyakat is looking nervous, he admitted having killed Liyakat S/o Abdulla. On this, PW. 7 Zareef Ahmad, Village Pradhan orally reported the mat ter to the police at police station Roorkee, where the check report (Ext. A-5) of the oral first information report was prepared and Crime No. 173 of 1988 is registered against accused Liyakat S/o Shahid, relating to offence punishable under Section 302 of I. P. C. The necessary entry was made in the general diary, copy of extract of which is Ext. A-6, on the record. On that very day i. e. 28-05-1988, at 02:15 PM. , the police party with Sub Inspector Satish Chandra Pachori (P. W. 8) reached the village and took the dead body of Liyakat S/o Abdulla in their possession and prepared inquest report (Ext. A-7 ). Police further prepared document form No. 13 (Ext. A-8); Sketch of the dead body (Ext. A -9); letter to the Chief Medical Officer (Ext. A-10) requesting for postmortem examination of the dead body. Dr. Arun Kumar Jain (P. W. 6) con ducted the postmortem examination on 29-05-1988 and prepared the autopsy report (Ext. A-4 ). He opined, after re cording ante mortem incised wounds that the deceased had died due to shock and hemorrhage, as a result of ante mortem injuries. The crime was initially investigated by Sub Inspector Bhanu Pratap Singh (P. W. 9), who interrogated the witnesses and recovered the blood stained Spade (PHAWARA) used in the crime from the house of the accused / appellant Liyakat, and prepared the re covery memo (Ext. A-1) of the same. He also prepared site plan (Ext. A-11 ). On completion of the investigation, the charge sheet was finally filed by Inspec tor Onkar Singh. The Magistrate, it appears on re ceipt of charge sheet after giving neces sary copies to the accused, as required under Section 207 of Cr. P. C. , commit ted the case to the court of Sessions,, for trial. Learned Sessions Judge appears to have transferred the case to the court of Additional Sessions Judge, Roorkee, who after hearing the parties, framed charge of offence punishable under Section 302 of I. P. C. against accused/appellant Liyakat S/o Shahid, on 08-11-1988. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Imrana, daughter of the accused (declared hostile); P. W. 2 Rooksana, another daughter of the ac cused (declared hostile); P. W. 3 Ram Swaroop (witness of recovery of blood stained Spade, used in the crime, from the house of the accused); P. W. 4 Jogendra Singh (who is also witness of recovery of Spade from the house of the accused); PW. 5 Naseeran (witness of fact, who has stated that before the in cident deceased Liyakat had come to the house of accused and the accused Liyakat came out in a nervous state and admitted having killed the deceased); PW. 6 Dr. Arun Kumar Jain (who con ducted the postmortem examination on the dead body of Liyakat S/o Abdulla); P. W. 7 Zareef (Village Pradhan and in formant); PW. 8 Sub Inspector Satish Chandra Pachori (in whose presence check of the F. I. R. was prepared and who accompanied the police party to the spot, and inquest report and other pa pers were prepared in his presence) and P. W. 9 Sub Inspector Bhanu Pratap Singh (Investigating Officer ). The oral and documentary evidence was put to the accused under Section 313 of Cr. P. C. , in reply to which he told that the evidence adduced against him was false. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found accused Liyakat S/o Shahid guilty of charge of offence punishable under Section 302 of I. P. C. After hearing the parties on sentence, learned trial court sentenced the convict to undergo impris onment for life (under Section 302 of I. PC. ). Aggrieved by said judgment and order dated 14-09-1993, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 525 of 1988, this appeal is filed by the convict before the Allahabad High Court on 4th of October 1993, where the same was admitted on 5th of October 1993. The appeal is received by transfer to this Court under Section 35 of the U. P. Re- organization Act, 2000, for its disposal.
(3.) BEFORE further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased at the time of postmortem examination, which are recorded by Dr. Arun Kumar Jain (P. W. 6), who con ducted the postmortem examination and prepared the autopsy report (Ext. A-4) on 29-05-1988. The ante mortem inju ries are being reproduced below : I) "incised wound 11 cm x 8 cm x bone deep on top of left shoulder with edges clean cut and contused with major vessels and soft tis sues divided, and fracture of head of left humerous tailing towards arm. ii) Incised wound 13 cm x 8 cm x bone deep on back of neck extending from external oc cipital protuberance of head to the level of cervical 5 ver tebra below with clean cut and contused edges dividing major vessels, soft tissues and fracture of cervical ver tebra, tailing towards right side. " The Medical Officer opined that cause of death was shock and haemor rhage due to the ante mortem injuries. The aforesaid report establishes the fact on the record that Liyakat S/o Abdulla died a homicidal death and was mur dered by causing the injuries, as men tioned above. Now, the question is whether the accused / appellant Liyakat S/o Shahid committed murder of the de ceased Liyakat S/o Abdulla, or not ? In inquest report (Ext. A-7) shows that after the Village Pradhan orally re ported the incident to the police, the po licemen reached in the village Kelhanpur and the dead body of deceased Liyakat S/o Abdulla was found in the house of accused / appellant Liyakat S/o Shahid. Apart from P. W. 8 Sub Inspector Satish Chandra Pachori and P. W. 9 Sub Inspec tor Bhanii Pratap Singh, the aforesaid fact is also proved by PW. 7 Zareef, Vil lage Pradhan, who has signed the in quest report. This circumstance is the most important and heaviest against the accused / appellant Liyakat S/o Shahid, on the record which corroborates the prosecution story. The site plan (Ext. A-11) prepared by the Investigating Officer shows that at place 'xa' in the Kothari (room) of the accused Liyakat, the dead body of the deceased was found.;