STATE Vs. HOTEY KHAN

JUDGEMENT

(1.) This is an appeal by the State against an order of acquittal of the two respondents, Hotey Khan and Zahoor, who were charged under Section 302 I. P. C., for the murder of one Shahzor Khan in his Kotha in village Chitta within police circle Kotwali Buland-shahr on 21-4-1957 at about 2 p.m.

(2.) The story on which the nrosccution was founded was briefly this. Hotey Khan and Zahoor along with one Yunis were wanted by the Pilkhwa police in connection with a case under Section 396 I. P. C. A requisition was received from that police station by police station Kotwali Bulandshabr for the arrest of these three persons who had for some time past been evading arrest. Shahzor Khan, the deceased, was acting as an informer, and with his help Mahabir Singh constable P. W. 6 assisted by another constable and a Chowkidar was able to arrest Yunis on 19-4-1957 when Yunis was engaged along with Karam Sher Khan P. W. 1 in working a Persian wheel over a well. On that date Hotey Khan and Zahoor, although wanted by Mahabir Singh constable, could not be arrested. It is, however, said that Shahjor gave a promise to Mahabir Singh constable that he would try his level best to get Hotey Khan and Zahoor arrested. The prosecution contended that Hotey Khan and Zahoor got scent of the matter and on the following day, namely, 20-4-1957, they went to the gher of Shahzor at about midday and there, in the presence of Kalian P. W. 5, they reprimanded Shahzor for his solicitude in helping the police in getting them arrested, and they further gave him a threat that if he did not desist from his activities they would kill him. As has been stated by Kalian P. W. 5, Shahzor did not take the matter seriously; and he gave a challenge to Hotey Khan and Zahoor that they may try to kill him if they could, and that he himself would deal with them in such fashion as he thought proper. One day later, that is on 21-4-1957, the murder of Shahzor is said to have been committed in his Kotha where Shahzor had been sleeping at about 2 p.m. Shahzor was lying over a cot. Another cot in the same Kotha was occupied by Imam Khan P. W. 2, his relation. Hotey Khan and Zahoor, it is said made appearance there. Zahoor pressed Shahzor over the cot and Hotey started inflicting injuries on him with a gandasa. Shahzor woke up and raised shrieks. Upon his shrieks Imam Khan also woke up. Imam Khan, it is said, reprimanded the two assailants but they asked him to keep mum else he would be visited with the same consequences. Imam Khan, however, continued to raise cries which attracted Na-zecr Khan P. W. 3 and Nasseb Khan P. W. 4. Na-zeer Khan was coming from his field and was going to the village and when he was at a distance of about 25 yards from the gher of Shahzor he heard the cries. Nasseb Khan was at his threshing floor which was at a distance of 25 paces from the Kotah of Shahzor and he too was attracted by the cries. These two persons, upon the evidence propounded by them, either saw the actual assault on Shahzor or they saw Hotey Khan and Zahoor coming out of the Kotha of Shahzor after committing the crime and running away towards the grave-yard where they were chased by these persons as also by Karam Sher Khan P. W. 1, a cousin of the deceased, who was proceeding from his house to his Kotha which lay at a distance of about 150 yards from the Kotha of Shahzor. Their effort to apprehend the two culprits was not successful. The culprits ultimately escaped. Shahzor met with an instantaneous death.

(3.) A report of the occurrence was lodged at police station Kotwali by Karam Sher Khan P. W. 1 on that very day at 4-55 p.m., the police station having been at a distance of about 3 3/4 miles from the place of occurrence. Karam Sher Khan although not an actual eye-witness of the occurrence formulated the first information report upon the information that had been given of the matter to him by Imam Khan, Nasseb Khan and Nazeer Khan. At the time of the making of this report Sub-Inspector Masood Murtaza P. W. 8 the Second Officer at police station Kotwali happened to be present. He took up investigation of the matter and ho proceeded to village Chitta where be reached at about 6-15 p.m. He found the dead body of Shahzor inside his Kotha. Inquest was made by him over the dead body. He recovered blood-stained earth from below the cot over which the dead body lay. He also took certain other articles lying over the cot which contained stains of blood. The dead body was sent to the mortuary for post-mortem examination. He examined Nasib Khan, Nazeer Khan, Imam Khan, Karam Sher Khan and Kalian on that very dav. He made a search for the accused but he could "not find them. Proceedings under Sections 87 and 88 Cr. P. C. had been taken against them and their property had been attached on the 26th of April,' 1957. Hotey Khan and Zahoor were challaned as absconders and they were later on arrested by the police of police station Sikanderabad.