CHHOTANNEY Vs. STATE OF U P

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court dismissing the appeal filed by the appellants and respondents 2 and 3 who were co-accused person. Respondent No. 2 Tahir, appellant No. 3 Azmat Ullah, appellant No. 1 Chhotanney and appellant No. 4-Mubarak were convicted by learned IV Additional Sessions Judge,' Sitapur for offences punishable under Section 302 read with Sections 201 and 148 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellant No. 2-Liyakat and respondent No. 3 Abdullah were found guilty of offence punishable under Section 302 read with Section 149, IPC and Section 147, IPC.

(2.) Prosecution version in a nutshell is as follows : On 18.11.1977 one Zahid Khan (hereinafter referred to as the 'deceased') was killed and one Azhar Beg alias Gobrey, father of appellant Azmatullah was done to death earlier and in that murder case, deceased Zahid Khan was also one of the accused. Zahid Khan was released on bail a few months before the occurrence of 18.11.1977. Ever since the release of Zahid Khan on bail, the accused had an eye on him and wanted to liquidate him. On 18.11.1977 at about 2 p.m. deceased Zahid Khan followed by his father Khadim Khan (now dead), Samiullah Khan and Salam Khan was coming back on foot with a cycle loaded with two bags of maize after completing the process of sowing of wheat in his plot situated within the limits of village Bangh Bhari. Accused Tahir and Azmatullah fired at him. Appellants Chhotanney and Mubarak chopped off upper portion of his head with their respective 'Banka' on the exhortation of appellant Liyakat. It was also alleged that the chopped portion of the head was handed over to the accused Abdullah and thereafter appellant Mubarak, Chhotanney, Azmat Ullah and accused Tahir Beg dragged the dead body of Zahid Khan for some distance with a view to throw away the same in a nearby river. But due to the arrival of witnesses they did not succeed in taking the dead body to the river. It was also claimed that Hakik Khan and Nasrullah Khan had also come on the spot during the course of the occurrence and had witnessed the incident of murder. According to the prosecution case, the accused ran away with the severed part of the head. Khadim Khan lodged written report on the same day at 1755 hrs with P.S. Sadarpur of district Sitapur in which he named all the six accused persons. S.I.B.N. Mishra was present at the time the FIR was lodged with the police station. He "took up the investigation. After recording the statement of informant Khadim Khan and Qaiyame Khan he rushed to the spot and reached there late in the evening. On reaching there, he found the dead body lying in a "Galiyara" at a distance of about 2 1/2 furlongs from village Bangh Bhari. He prepared the inquest report (Ext. Ka 5), prepared the diagram of the dead body and sent the dead body to the District Head Quarter through constable Shiv Singh, for post-mortem examination. The upper portion of the head was missing. He inspected the place of occurrence in the light of patromax; a bicycle having blood stains on the left paddle, two bags of maize were found lying on the spot and were given in the Supurdagi of Khadim Khan, after necessary formalities. He also observed the evidence of dragging of the dead body. Blood stained and simple earth were collected and necessary Fard was prepared. The Investigating Officer also recovered a piece of blood stained bone, blood-stained hair and grass. The place of occurrence was a user land having grass on it and a site plan was prepared. On the next day, statements of Hakik, Nasrullah Khan, Salam Khan and Samiullah were recorded and a search for the named accused was made. The accused were absconding. The severed portion of the head could not be traced out. The accused surrendered in court on different dates and their statements were recorded in jail. On post-mortem examination that took place on 20.11.1977 at 11.30 a.m. Dr. Om Prakash found various ante-mortem external injuries on the body of the deceased. On the basis of information lodged, investigation was undertaken and on completion thereof charge-sheet was filed. As the accused persons pleaded innocence, trial was held. The trial Court placing reliance on the evidence of the eye-witnesses PWs 1, 2 and 3 directed conviction as noted above. In appeal, it was primarily contended that PWs 2 and 3 have not identified the accused persons and the medical evidence was in conflict with the ocular evidence. The High Court did not accept the stand and upheld the conviction.

(3.) In the present appeal the stand taken by the appellants before the High Court was reiterated. It is pointed out by learned counsel for the appellants that appellant No. 3-Azmat Ullah has died in the meantime, so also respondents 2 and 3-Tahir and Abdullah respectively. It appears that there were three eye-witnesses PWs 1, 2 and 3. The stand that PW-3 could not recognize the accused is not factually correct as it is evident from a bare reading of the evidence of PW-3.